House of Lords: Reform

Lord Northbrook: asked Her Majesty's Government:
	Whether they consider the powers of the House of Lords to be too great.

Lord Falconer of Thoroton: My Lords, a Joint Committee of both Houses has been set up to look at the current conventions. The Leader of the other place, the Government Chief Whip in this House and I gave evidence yesterday. We discussed the 60-day proposal which is included in our manifesto. That proposal would not reduce the House's power to delay legislation. We await the Joint Committee's report.

Lord Northbrook: My Lords, I thank the noble and learned Lord for his response. Will he tell the House the problems that the Government seek to solve by introducing a 60-day time limit to Bills and the other changes to conventions that they propose? Will he tell us where we have gone too far and need to be reined back?

Lord Falconer of Thoroton: My Lords, we want the Joint Committee to define the conventions, not to change them in any way. There is no suggestion that we seek change in relation to them. The 60-day proposal is to ensure that the convention that says that matters will be dealt with within a reasonable time can be given some meaning. As we made clear in our evidence to the committee yesterday, we invite comments from the Joint Committee on that issue. If it has other proposals that could achieve the same result, we would be very happy to hear them.

Lord Waddington: My Lords, the noble and learned Lord the Lord Chancellor was interviewed by the Daily Telegraph on April Fool's Day 2006. In that interview, did he not say that a more legitimate second Chamber ought to have fewer powers? Was he reflecting Government policy, or was it another of his little jokes?

Lord Falconer of Thoroton: My Lords, I remember the interview well. Our only proposal that bears on powers is the 60-day proposal. We make it clear that that is for the purpose of ensuring a reasonable timeframe. It does not affect one jot the ability of this House to reject or amend legislation.

Lord Campbell-Savours: My Lords, is it not an abuse of the powers of this House when the Government are forced to back down on the eve of Prorogation, as happened on a single occasion last year?

Lord Falconer of Thoroton: My Lords, with regard to ping-pong and issues between the two places, we are a scrutinising and revising Chamber. The right course is for the other place to consider what we say and, as much as possible, for us to reach agreement on the issues. That is what we almost invariably succeed in doing. Normally, the result is that there is better legislation.

Lord McNally: My Lords, as has already been established, one can hardly switch on the radio or open a newspaper without hearing the noble and learned Lord the Lord Chancellor on Lords reform. Does he agree that in previous times the Leader of this House has taken a key role in discussions on Lords reform? He or she does so rightly because they have a mandate to defend the interests of the whole House. Although I would gladly go into the jungle with the noble and learned Lord the Lord Chancellor at any time, I would rather be assured that the Leader of the House was looking after the wider interests of the whole House while the discussions proceed.

Lord Falconer of Thoroton: My Lords, the Leader of the House has a key role to play in the formulation of policy on Lords reform. I hope that I never have to go into the jungle with the noble Lord, Lord McNally. I believe that I have been singularly and rather unexpectedly silent on the issue over the past few months.

Lord Campbell of Alloway: My Lords, is the noble and learned Lord aware that he has not answered the question of my noble friend? He has not said why the Government—of which, I assume, he is a part—are seeking these suggestions and just leaving it to a committee to consider. Why do the Government make these suggestions?

Lord Falconer of Thoroton: My Lords, we have made it absolutely clear why we have made the 60-day proposal. Noble Lords will recall the remark made in this place by the Leader of the Opposition, the noble Lord, Lord Strathclyde, on other proposals that had been made, that, if we moved forward with a particular Bill, it would lead to the disruption of other Bills. Noble Lords will also remember the Animal Welfare Bill, which was subject to a dilatory Motion. It happens very rarely, but it is with that sort of issue that the 60-day proposal is designed to deal.

Lord Elton: My Lords, does the noble and learned Lord recognise that the balance of power between this House and another place is an integral part of the much more important balance between Parliament and the Government? The question, therefore, ought not to be whether our powers are too great but whether the powers of Parliament are sufficiently great. What would be his answer to that question?

Lord Falconer of Thoroton: My Lords, I completely agree with the noble Lord's proposition that the relationship between the two Houses is critical to how Parliament works. It is also of great significance in the relationship between Parliament and the Government or Executive of the day. In holding the Executive to account, our role is crucial, but so, too, obviously, is the role of the House of Commons. Just as we need to consider whether this place needs to be reformed in other ways, so, too, in the other place reform needs to be looked at. We welcome that opportunity.

Lord Forsyth of Drumlean: My Lords, if the House were to have an elected composition, which powers would be taken from the House of Commons and given to this place, so that the elected Members could do their job in representing their electors?

Lord Falconer of Thoroton: My Lords, no one suggests for one moment that any powers would be taken from the Commons and given to this place. As we said in the evidence that we put before the Joint Committee, the reasons why this House has the powers that it does, and the reasons for the conventions, are to do with the fact that everyone accepts that the House of Commons is the prime Chamber—the Government are selected from there and supply is dealt with there—and no one is seeking to change that. The vast majority of people in this House and the other place accept that as the foundation of our constitution.

Lord Wallace of Saltaire: My Lords, the noble and learned Lord mentioned the 60-day question. I think that it is now 180 days since the Charities Bill was cleared from this House and passed to the other place. I gather that a Second Reading has now been agreed in the other place. Does the 60-day rule apply only to one Chamber and not to the other in delaying government legislation?

Lord Falconer of Thoroton: My Lords, I am afraid that I cannot comment on the details of the Charities Bill because I do not know what the answer is. The proposal on 60 days is made on the basis that the House of Commons is the prime Chamber; it refers only to the House of Lords. But, as we have made clear to the Joint Committee, we would welcome suggestions on how the same outcome can be obtained in another way.

Schools: Special Educational Needs

Baroness Linklater of Butterstone: asked Her Majesty's Government:
	What assessment they have made of claims from the National Union of Teachers that mainstream schools cannot manage special needs pupils.

Baroness Crawley: My Lords, the claims from the NUT are based on the perceptions of staff in a small number of schools in England from which it would not be safe to draw conclusions. Ofsted is carrying out a large-scale survey of the provision made for pupils with special educational needs and disabilities in a range of different settings and the outcomes achieved. We will consider its findings and those of the Education and Skills Select Committee inquiry into SEN very carefully.

Baroness Linklater of Butterstone: My Lords, I thank the Minister for her reply. She is right that my question was based on the call for a,
	"root and branch independent review of inclusion policies and practice",
	by the general secretary of the NUT. I also declare an interest as the mother of a daughter with special educational needs who spent her educational life until she was 16 in mainstream schooling, and I am the founder and president of a school for educationally fragile children in Scotland, where virtually all the children are funded by their LEA.
	We must celebrate the achievements of the mainstream schools that we all know, which succeed in creating a truly inclusive environment for children with SEN and disabilities. I trust that the Minister agrees—

Noble Lords: Question.

Baroness Linklater of Butterstone: My Lords, there is a built-in question here.
	The needs of all children must be fully met, so that their school experience is a happy one in which they can thrive and reach their full potential. Does the Minister therefore agree that, in reality, inclusion and mainstream education are not always synonymous for every child and that the presumption of a mainstream school should be secondary to the meeting of need? The provision of resources—

Noble Lords: Question!

Baroness Linklater of Butterstone: My Lords, the second question is coming.
	Does the Minister agree that the figures on permanent exclusions are deeply worrying? For example, the Advisory Centre for Education found that,
	"three quarters of permanent exclusions"—

Noble Lords: Order!

Baroness Linklater of Butterstone: My Lords, this is my question. Am I allowed to finish?

Baroness Amos: My Lords, it is the will of the House that we move on to the answer.

Baroness Crawley: My Lords, before answering the question, I must say that the noble Baroness is very well respected in the House for the work that she does and her commitment to special educational needs children.
	The Government do not believe that it is a case of either/or—of either special schools or mainstream schools. We believe that we have to start with the needs of each child. Sometimes those needs will be met in a special school. In fact, we are increasing the number of special schools and the resources going to them. However, in the majority of cases, those needs will be met in mainstream schools, and we want to ensure that those schools are the best choices for those children and their parents. We are doing that in a number of ways, including doubling the resources for special educational needs since 2001. Also, we are ensuring that schools collaborate in partnerships between mainstream and special schools.

Lord Howarth of Newport: My Lords, should we not be grateful to the NUT for its candour? Inclusive education is a noble and proper ideal, but has there not been too much disingenuousness about it in practice? What plans do the Government have to strip out unnecessary administrative complexity, improve the quantity and quality of training and fund special education in both integrated and special schools adequately, so that inclusive education can become the benign reality that it ought to be for all children?

Baroness Crawley: Yes, my Lords. Of course that is the aim of the Government, and we are working to that end. As my noble friend will know, local authorities' budgeted expenditure on education for children with special needs has increased from £2.8 billion in 2001 to £4.1 billion in 2005. We have also ensured that accountability, in the form of the inspection regime, is increased and that training, starting in teacher training establishments, is sharpened up. Instead of training for perhaps only a few hours or days, as was the case, candidate teachers will now have from one to four weeks' training. We are also looking at how that training can continue to develop through schools and teachers.

Lord Dearing: My Lords, I welcome the Minister's reference to the work being done by Ofsted to review present provision. Does she agree that, as a general principle, the sooner and the more effectively we respond to the needs of children with behavioural and social difficulties the better for them, the better for all other pupils and the better, in the long run, for the Exchequer?

Baroness Crawley: Yes, my Lords, I agree. The noble Lord, Lord Dearing, will know from his great expertise in this area that work on the issue was remitted earlier to the department's BESD working party. Work is now under way to scope those issues and draw together the evidence on the support and guidance already available to schools. Those findings will be considered by the working group in early July.

Baroness Buscombe: My Lords, if the Minister feels so strongly that this is not a case of either/or—of mainstream or special needs schools—will she agree here and now to a moratorium on the closure of special needs schools?

Baroness Crawley: My Lords, we will not agree to that. We do not want to centrally impose a planning blight on local authorities so that they cannot develop their provision to meet changing patterns of need in their area. Bringing mainstream and special schools together to share expertise and to address the problems of weak and failing schools is the way forward.

Baroness Walmsley: My Lords, is the Minister concerned that some of the Government's flagship mainstream academy schools are subtly ensuring that the number of children with special needs attending their school, or admitted to their school, is being reduced? Does she accept that the Government can set up as many tribunals as they like but that parents will not use them if they think that a school does not want their child?

Baroness Crawley: My Lords, I do not agree that academies take less than their fair share of SEN pupils. Academies have replaced predecessor schools, which, as the noble Baroness will know, are often in deprived inner-city areas and have above-average numbers of children with additional needs, including SEN. Academies therefore often have a higher than average number of SEN pupils compared with other schools in their area.

Royal Courts of Justice: Access

Lord Lloyd of Berwick: asked Her Majesty's Government:
	What arrangements they are making to enable disabled judges to access the courts in the eastern block of the Royal Courts of Justice.

Lord Falconer of Thoroton: My Lords, a number of initiatives have already been undertaken in the east wing to facilitate access for disabled judges, including car parking, ramps, chair-lift installation and additional handrails, but not enough. We need to ensure that there are courts to which there is disabled access in which the Court of Appeal can sit and that double fire doors do not prevent mobility in a wheelchair around the east wing. There also needs to be proper access from the quadrangle car park to the east wing. The work on the fire doors and the car park will be completed by the end of the long vacation and, subject to a feasibility study, we aim to complete the work on access to the Court of Appeal by the end of the year.

Lord Lloyd of Berwick: My Lords, I thank the noble and learned Lord for his Answer. Is he aware that, since the end of 2005, Lord Justice Parker has been unable to get into the east wing of the law courts in his wheelchair without having somebody to help him? It is even more difficult for him to get into any of the courts in which he should be sitting. Does it not follow that the department is, and has been, in breach of the very specific regulations that came into force in October 2004? Will the noble and learned Lord give an undertaking—now, if possible—that funds will be made available as soon as possible to enable the necessary work to be completed?

Lord Falconer of Thoroton: My Lords, I was aware of Lord Justice Parker's difficulties. The three specific things that he said were making his life difficult were the steps up to the Courts of Appeal in the east wing, the car park and the double fire doors. I dealt with each of those in my initial Answer, and, subject to a feasibility study on the steps up to the Court of Appeal, they should be dealt with by Christmas.

Lord Morris of Manchester: My Lords, would my noble and learned friend agree that for a judge, juror or anyone else officially involved in legal proceedings to be excluded from any court on grounds of disability gravely demeans the reputation of our legal system? Does he accept that this disturbing case, 36 years on from the enactment of our basic legislation on access to the built environment—I speak as its author—strongly implies lack of due priority? When will all our courts be fully accessible to disabled people?

Lord Falconer of Thoroton: My Lords, of course all our courts should be accessible by disabled people. That is why we need to deal urgently with the issues that the noble and learned Lord, Lord Lloyd, raised. It is why I dealt with the specifics of that case and gave the time limits within which they would be dealt with.

Baroness Masham of Ilton: My Lords, I declare an interest as president of the Spinal Injuries Association. Is the noble and learned Lord aware that among our members there are many lawyers, many of whom are particularly bright and might want to become a judge? Should not all courts, throughout the country, be accessible to all people working in them or going to them?

Lord Falconer of Thoroton: They should be, my Lords. That is the position on all new builds. The Royal Courts of Justice, as the noble Baroness will know, were built in the middle of the 19th;century, but that is no excuse for not getting the courts up to a standard where people who sit there as judges and those who use them have proper disabled access.

Lord Addington: My Lords, can the noble and learned Lord give us some indication of when all the courts and legal buildings in the country will be fully compliant with current regulations? Will he take the opportunity to point out the anathema of making us pass legislation when the very people who are supposed to enforce it cannot get into the courts if they are disabled?

Lord Falconer of Thoroton: My Lords, there is disabled access to the vast majority of courts. We are discussing the inability of a judge to get in to court at the Royal Courts of Justice. I cannot give a specific date, but I completely agree that it is vital that the courts set an example.

Baroness Darcy de Knayth: My Lords, is the noble and learned Lord aware that the Disability Rights Commission says that it continues to report major barriers to litigants and disabled jurors?

Lord Falconer of Thoroton: Indeed, my Lords, and, as I say, although the majority of courts meet the standard, not all of them do. I am extremely concerned to ensure that all courts meet the relevant standard as quickly as possible.

Baroness Gardner of Parkes: My Lords, what will be the position with the Supreme Court? It will be in the Middlesex Guild Hall, a listed building. Will it still be possible to make the necessary arrangements for disabled people?

Lord Falconer of Thoroton: It will be, my Lords. That is one of the matters dealt with in the preparation of the designs.

Somalia

Lord Avebury: asked Her Majesty's Government:
	Whether they intend to participate in the meeting of the proposed Somali contact group in New York; and what strategy they consider should now be pursued to ensure that Somalia has a stable Government.

Lord Triesman: My Lords, we plan to participate in the contact group meeting at official level. Our strategy is to support the Somali transitional federal institutions and an inclusive approach to reconciliation and the restoration of effective governance in Somalia.

Lord Avebury: My Lords, does the Minister agree that it is unhelpful of the Americans to convene this meeting in New York at a time when the special envoy of the Secretary-General, Mr Fall, is talking to the key players with a view to making a report to the Security Council next week? In view of the fact that the situation in Somalia is a threat to international peace and security, as declared by the Security Council last month, does the noble Lord agree that, in the absence of any indication that the transitional federal institutions will be able to restore peace, consideration should be given to the formation of a more inclusive Government in Somalia to enable other players to enter the equation? Does he also agree that consideration should be given by the Security Council next week to the demand that is likely to be made by the Somali Parliament for an international peacekeeping force from the United Nations?

Lord Triesman: My Lords, the position in Somalia has become a great deal more difficult today. The forces that took Mogadishu have advanced to and taken the town of Jowhar and possibly the airport to the north of it—we do not yet know. We also do not yet know whether they intend to march on Baidoa. There are also indications of troops massing on the Ethiopian border. I think that any steps taken in the United Nations by the contact group should be expeditious, and we should not worry unduly about whether we have got the exact composition right today. Our official will make those points in New York.
	I make the point in the House today that, for all this peace-seeking work to have any prospect, the parties must stop fighting now. They must spare that country from further bloodshed. They must engage with the transitional Government, and the transitional Government must engage with them, or the prospects are indeed dreadful.

Lord Anderson of Swansea: My Lords, is it the view of the Government that the Somaliland Government, based in Hargeisa, can play a positive role in this tragic conflict? What contacts, if any, are there between Her Majesty's Government, the international community and the Government of Somaliland?

Lord Triesman: My Lords, there are continuing contacts with the Government of Somaliland. I pay tribute to that Government; although they are not internationally recognised, in the sense of there being a fully fledged state, the stability of Somaliland stands in sharp contrast to the position across most of the rest of Somalia, with the possible exception of Puntland, directly to the east of Somaliland. Anything that can preserve that stability is very important. I believe that that will be the subject of some discussion at the African Union conference in the Gambia in the first few days of July.

Lord Howell of Guildford: My Lords, is it correct that the Islamic Courts Union, which is the party that has taken over Mogadishu, has stated repeatedly that it does not wish to be regarded as an enemy of Somalia's future and that it wishes to have friendly talks? If that is correct, will it be included in or consulted by the contact group?

Lord Triesman: My Lords, it has made those statements, which has encouraged the interim president, President Yusuf, to try to make contact with it. I believe that, as we meet, the efforts to make that contact and open a dialogue have started. My own view is that the international community through the contact group and through the United Nations Special Representative must try to speak to all those parties, not least to try to prevent fighting from continuing.

Baroness Northover: My Lords, can I press the noble Lord further about the role of the United States? Does he think that the United States can be seen as an honest broker in this situation, given the reports of the US providing funds to the Somali warlords and therefore, as it were, backing one side? Should not the United Nations, rather than the US, take a lead in trying to address the problems of that dangerous area?

Lord Triesman: My Lords, nothing will stop the United Nations addressing the problems. I welcome the fact that all the efforts from the powerful players—the United States, together with a number of others—are now directed at preventing the onset of what could be a very serious conflict. Incidentally, the effort is being co-chaired by Norway, which has a good and extremely powerful record in negotiating peace. Evidence of the actions of the United States is a matter for the United States Government, but the monitoring group at the United Nations has the power to look at any evidence of impropriety, particularly in respect of the arms embargo, and if necessary through the Security Council to act on that. However, we should respect those processes rather than being driven along by what might be alleged in the newspapers from day to day.

Lord Chidgey: My Lords, the Minister mentioned in one of his earlier replies his concern that the international community and the African Union should take an interest in this development, particularly with the meeting coming up in the Gambia. Have Her Majesty's Government made any contact or had any discussion with our counterparts in the European Union about giving the AU as much support as possible in order to prevent the conflict spreading throughout the northern zones of Africa?

Lord Triesman: My Lords, we have had discussions with the European Union, the African Union and the regional bodies throughout Africa.

Lord Avebury: My Lords, does the occupation of Jowhar by the forces of the Islamic Courts Union mean that there is one fewer warlord with whom negotiations need to be held? As the Islamic Courts Union has declared that it has no intention of attacking Baidoa and the Government of President Abdullahi Yusuf have declared that they would like to engage in conversations with the Islamic Courts Union, is that not the next step that should be encouraged by the United Nations and by the UK in particular? Will the Minister undertake to put that on the table for discussion at next week's meeting of the Security Council?

Lord Triesman: My Lords, I cannot react with huge enthusiasm to the proposition and the way in which it was put. Just a couple of days ago, those forces said that they were not going to Jowhar, but they are there and they have taken the town. I hope that that is the full extent of the military excursion. I do not know whether encouraging any forces at the moment is what we should do, whether or not it leads to one fewer warlord. The reality is that we need the parties to stop fighting, to start talking and to take the international obligations seriously, and we need the international community to make sure that the arms embargo holds. The flow of weapons into that region must stop if there is to be any realistic prospect of peace.

Parliamentary Costs Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to introduce a Bill to consolidate the House of Commons Costs Taxation Act 1847, the House of Lords Costs Taxation Act 1849, the Parliamentary Costs Act 1865, the Parliamentary Costs Act 1867, the Parliamentary Costs Act 1871 and the House of Commons Costs Taxation Act 1879, with amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Falconer of Thoroton.)
	On Question, Bill read a first time, and ordered to be printed.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Rooker: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it be an instruction to the Grand Committee to which the Northern Ireland (Miscellaneous Provisions) Bill has been committed that they consider the Bill in the following order:
	Clauses 1 to 14, Schedule 1, Clauses 15 to 17, Schedule 2, Clauses 18 to 26, Schedule 3, Clauses 27 to 30, Schedules 4 and 5, Clauses 31 to 33.—(Lord Rooker.)

On Question, Motion agreed to.

Liaison

Lord Brabazon of Tara: rose to move, That the 2nd Report from the Select Committee be agreed to. (HL Paper 174)

Lord Brabazon of Tara: My Lords, there are an extra three proposals for new committees. The first was a request from the noble Lord, Lord Fowler, for a sessional committee on broadcasting, the media and communications. The other two requests were for ad hoc committees. A committee on regulators was proposed by the noble Lord, Lord Holme of Cheltenham, and a committee on the Civil Service Act was proposed by the noble Lord, Lord Lester of Herne Hill. The proponents of all three suggestions addressed the Liaison Committee on the merits of their proposals.
	It was the view of the committee that an ad hoc Select Committee on regulators should be appointed. The attraction of this proposal was that the committee would be cross-cutting and would deal with issues not dealt with by the House of Commons.
	It was the committee's view that neither the proposal of the noble Lord, Lord Fowler, nor that of the noble Lord, Lord Lester, should be supported. In the case of a Select Committee on the Civil Service Act, we felt that a committee would add little value to the deliberation reports of the many bodies that have already considered this issue. Notable among these was a report from the House of Commons Public Administration Committee in 2003.
	In the case of a Select Committee on broadcasting, the media and communications, the committee had two areas of concern. First, the proposal was for a new sessional committee rather than an ad hoc committee. That would call for a permanent commitment of resources. We are reluctant to agree to a new permanent committee on any subject at the moment. Our second concern was about the subject matter. Our committee system is designed to complement the committees of the House of Commons by being cross-cutting and concerned with specific issues. A Select Committee on broadcasting, the media and communications would overlap considerably with the House of Commons Culture, Media and Sport Committee, which could produce duplication and tension between the Houses. Nevertheless, as we said in our report, we are conscious of the impact and high reputation of the recent ad hoc Select Committee on the BBC's charter review, which is why we have not discouraged a new application for a further ad hoc Select Committee in this subject area.
	In view of the Motion tabled by the noble Lord, Lord Fowler, it might be helpful if I said a few words about why I hope that the advice of the Liaison Committee will be accepted. We considered the noble Lord's proposal carefully; in fact, it was the third time that the Liaison Committee had considered a proposal for a similar committee in the past four years. We have been consistent in our view that this subject area is already suitably scrutinised by the House of Commons. The House has delegated to the Liaison Committee the function of allocating resources for Select Committee work and for considering requests for ad hoc Select Committees. The committee was established in 1992 to bring rationality to a process which, until then, had been haphazard. The House normally accepts the committee's advice, as I hope it will on this occasion. I suggest that this advice should be set aside only when circumstances have changed and not simply because the advice has proved unwelcome to some.
	If the House were to agree to the noble Lord's amendment and the Liaison Committee considered that to be a reflection of the will of the House that such a committee be established, the Liaison Committee would have to consider the resource implications. Sessional Committees require significant staff and Peer resources. At the moment, the House does not have the staff to support a permanent new unit of committee activity so, whatever the Liaison Committee decides following a reference back, there would inevitably be a delay before such a committee could be set up. I beg to move.

Moved, That the 2nd Report from the Select Committee be agreed to. (HL Paper 174)—(The Chairman of Committees.)

Lord Fowler: rose to move, as an amendment to the above Motion, at end to insert "except that the proposal for a permanent Select Committee on broadcasting, the media, and communications, should be reconsidered by the Liaison Committee".

Lord Fowler: My Lords, let me say at once that I am in no way challenging the recommendation of the Liaison Committee to set up an ad hoc committee on regulators. Even if my amendment were passed, it would have no effect whatever on that decision. Nor am I asking this afternoon that the House should decide whether to have a permanent committee on broadcasting, the media and communications. The purpose is to ask that the proposal for such a permanent Select Committee should be reconsidered by the Liaison Committee, and in doing this I raise what I believe is an issue of some principle which the House might want to consider.
	The history is that, as the report makes clear, I submitted a proposal for a permanent media Select Committee, and that was considered on 8 May. At the meeting, I was supported from the government Benches by the noble Lord, Lord Maxton, and from the Liberal Democrat Benches by the noble Baroness, Lady Bonham-Carter. I also had the strong support of the noble Baroness, Lady Howarth, the right reverend Prelate the Bishop of Manchester and many others. Unknown to me or my colleagues, about 30 minutes before the meeting was due to start—in other words, at the very last moment—a letter was delivered to the chairman of the Liaison Committee. It was from the chairman of the House of Commons Culture, Media and Sport Select Committee, John Whittingdale, and it opposed the setting up of such a permanent committee by the Lords. I repeat: I had no notice of this, nor had my colleagues, nor indeed, I think, had the Liaison Committee either. Time was obviously very short. The outcome was that although the letter was circulated to the Liaison Committee, it was not shown to me or my colleagues. Nevertheless, when it came to the meeting I was questioned on it, and it appears as evidence in the report at page 8.
	Personally, I find it fairly extraordinary that a letter should have been submitted in this way. I find it fairly extraordinary that it should have been done without notice to anyone. My own submission was with the committee six weeks earlier. I find it extraordinary that anyone should have thought that this was a proper thing to do. I can imagine the reaction from the Commons had the roles been reversed. But what I think makes it so wrong is that, had I been given notice, I could have answered fully the charges made in the letter itself.
	I will not weary the House with a point-by-point rebuttal but I should like to take two examples. Mr Whittingdale, in his letter, fears duplication between the two Houses. But his view, it seems to me, is based on a misconception. His committee shadows the work of the Department for Culture and it is a departmental Select Committee. That is not our aim. We want to look at the media industries involved across departments, and, incidentally, they are very major industries. The difference in approach is shown in the inquiries carried out by the Commons over the past five years. They published 28 reports, only four of which related to broadcasting, and two to wider media matters. The others concerned issues that would be outside our remit in any event. Over the past five years, the Commons have published reports on the market for art, theatre, maritime heritage, public libraries, drugs in sport, dance, reform of the National Lottery, tourism, the London Olympic bid, National Gallery funding, gambling, the Wembley national stadium project, the Commonwealth Games, arts development, swimming and world athletics. None of those are issues that we want to look at at all. They are important issues, but they are not the ones we want to look at. That has been the bulk of their work, and none of that, as I say, would be covered by our Select Committee if it was ever approved.
	An even more suspect argument in the letter, which is set out in the report, is that the setting up of a committee might lead to "pressure" on the broadcasters; they might find it difficult to cope in giving evidence if there were two Select Committees. To be blunt, I think that that is nonsense. I later mentioned this argument to Charles Allen, the head of ITV, who on the contrary told me he would welcome such a committee. I have no doubt that Channel 4 would say exactly the same thing. I cannot believe that it is the view of the BBC, given that one of the arguments about the BBC is insufficient parliamentary scrutiny.
	I understand the issue of resources, but I think resources could be found. I believe that the BBC Select Committee, a Select Committee of this House, showed that such Select Committees can play an important part. I accept that we want to avoid duplication; we did so on the BBC Charter Review Committee and it is a perfectly common sense and easy thing to do. If we are to say that there is to be no overlap at all, a whole range of committees in the Lords are brought under question. In the area that we are proposing, there are wide open spaces such as the print media on which the Commons has done next to no work over the past five years, or publishing, where there are issues of competition. Above all, a Lords committee brings independent judgment to this area, and it brings also an experience that was well illustrated by the membership of the BBC Select Committee that I was fortunate enough to work with.
	We are not asking for the House to decide today whether it thinks that there should be a permanent committee, but we are asking simply for the opportunity to be heard again by the Liaison Committee with all the papers before us. We ask this in view of the entirely unsatisfactory background of the application. That is no criticism of the Lord Chairman. I accept that the Liaison Committee may come to the same conclusion. I obviously hope that it will not, and I will try to persuade it otherwise, but at least we would feel in that case that natural justice had been served and that last minute interventions designed to destroy our case will not be tolerated by this House. I beg to move.
	Moved, as an amendment to the Motion, at end to insert "except that the proposal for a permanent Select Committee on broadcasting, the media, and communications, should be reconsidered by the Liaison Committee".—(Lord Fowler.)

Lord Crickhowell: My Lords, I rise to strongly support the amendment proposed by my noble friend. I had the good fortune to serve on the Joint Committee of both Houses on the Communications Bill. We discovered then the extraordinary range of expertise in this field that exists in this House. My noble friend referred to a similar experience with the BBC Select Committee. His case has been so powerfully made and is so comprehensive that I really only want to add a couple of points.
	We are in a period of rapid and hugely important change in the field of media, broadcasting and communications. I cannot think of any moment for a very, very long time when there has been a more urgent need for these matters to be under review by Parliament. The approach of this House is often entirely different to that of a committee in the other House. It is frankly absurd to suggest that two committees with such different remits will be standing on each other's toes and duplicating work. It really is an unworthy suggestion that the chairmen of the two committees are not going to be able to work out a programme that does not cause difficulty and embarrassment. An overwhelming case has been made by my noble friend, and I very much hope that the House will accept this amendment.

Baroness Howe of Idlicote: My Lords, of course I support the amendment. I do so because the proposal is the logical conclusion—indeed the only possible conclusion in my view—of the way in which the Liaison Committee has from the outset addressed this question. I refer your Lordships once again to its view when first considering this question in the days of Lord Williams of Mostyn, in February 2002. On exactly the same issue, it had precisely this to say:
	"The proposed Select Committee would examine a subject on which the House has a great deal of expertise"—
	that is point one—
	"and which cuts across . . . departmental boundaries"—
	that is point two. No doubt it had in mind the point expressly made by the Wakeham commission on House of Lords reform, that cross-departmental Select Committees were an area in which the House of Lords could play an important part. It also said:
	"We believe that it would be a good subject for a House of Lords committee".
	That is point three. Have we not arrived at exactly the point foreshadowed in the first report? It recommended,
	"the appointment of an ad hoc committee in the first instance, with a view to making it permanent if it were a success".
	The work of the ad hoc committee of the noble Lord, Lord Fowler, on the BBC charter review has been acclaimed as a great success—and we owe a great deal of that to the chairmanship of the noble Lord. The Liaison Committee states that it is "very conscious" that his committee has achieved a "high reputation". As has been referred to, it is quite extraordinary for there to be a last-minute intervention from a chairman of a Select Committee in another place, who sent a letter of which the noble Lord, Lord Fowler, was, astonishingly, unaware.
	In any event, surely a decision by this House of this kind should not be dependent upon the views of another place. The Select Committee proposed by the noble Lord, Lord Fowler, would come into existence at a time of unprecedented change in communications, as other noble Lords have said. It would be there during that testing period of digital switchover and when the new forms of BBC governance were being tested. In addition, it could serve as a safety valve if a more public, independent scrutiny of a communications issue was needed.
	For those reasons and many more, surely it is right to allow us to put again to the Liaison Committee the case for a permanent Select Committee on communications to be set up.

Baroness Bonham-Carter of Yarnbury: My Lords, I, too, support the amendment moved by the noble Lord, Lord Fowler. As has been said, a revolution is going on in the world of broadcasting, the media and communications. New technologies are transforming how the public receives information, as well as what it receives. Many, particularly the young, regard the internet as their principal source of communication and knowledge. Broadcasting is changing rapidly. The future is upon us much more quickly these days.
	Amazon.com was created only 10 years ago. Today it has some 50 million regular customers, to whom it offers an automatic, personalised service. You log on and are informed about products that suit your interest. New technologies, new services and evolving new habits mean new challenges and the need for new regulation. All of that is so relevant.
	The House of Lords is considered by many to be a bit of a backwater. That is completely wrong, but we must keep up with the times and we must be responsive to the changes in society if that perception is not to become true. A permanent Select Committee on broadcasting, media and communications is an idea that we should embrace.

Baroness Amos: My Lords, I rise briefly as a Member of the Liaison Committee to bring two matters to the attention of the House. Many noble Lords who have spoken have mentioned the letter from the chairman of the Select Committee in another place. I should assure the House that that letter did not influence the decision of the Liaison Committee.

Noble Lords: Oh!

Baroness Amos: My Lords, perhaps I may say that it had rather the opposite effect on the committee.
	If noble Lords were to look at the report from the Liaison Committee, they would see that it makes two recommendations. First, it does not discourage future applications for ad hoc committees in the subject area of broadcasting, media and communications, but, further, on page 5 of the report, at item 11 on the "Duration of Select Committees", the committee agreed that it would,
	"consider at a future meeting",
	the,
	"desirability . . . of additional sessional committees".
	The committee made that decision because it did not want to make a decision about agreeing to one possible additional sessional committee in isolation from any other requests for potential future sessional committees. This is a matter that the House will ultimately have to decide, but I think it will agree that there may be other areas in which noble Lords would wish to see an additional sessional committee. Any decision should not be made in isolation. That is precisely why the decision of the committee is framed in the way that it is.

Lord King of Bridgwater: My Lords, I listened with great interest to the noble Baroness the Leader of the House and her statement that the committee was not influenced by the letter received so late from the chairman of the committee in another place. It is interesting to remember that the letter was received very late for a committee meeting that had already been postponed and was intended to be held at an earlier date. However, if the committee was not going to take that letter into account, that cannot have been a reason not to let my noble friend Lord Fowler have sight of it. It is the most elementary principle of natural justice.
	I hope we do not need to have an argument about this. My noble friend Lord Fowler was not proposing that we should set this committee up now and have an agreement. With great respect to the noble Baroness the Leader of the House, I understand her position on this: she has to defend her corner. We all understand that the Lord President and the Clerk were put in an appallingly difficult position by the discourtesy of a chairman of a committee in another place sending a letter so late. He did not even copy it to his colleague and parliamentary friend to even let him know that he was doing it. They have both been put in an extremely difficult position.
	I do not want to argue about the merits of the committee at this stage, because that is not the issue before us. We will argue that in due course. Surely, the noble Baroness the Leader of the House listened to and heard the voices. It is an argument not about whether there should be a Select Committee on a permanent basis but about whether there should be fair process in discussion of these matters. It does the House no great credit if it cannot say, "Okay, there is unhappiness about this, widely expressed in every corner of the House. Let us not make a fuss". I hope that, on reflection, the Lord President will feel that his colleagues on the Liaison Committee, who, it is no secret, also have some views on this matter, should have a chance to look at this again now that the full facts are known, so that natural justice can be seen to be done.

Lord Peston: My Lords, when I read the report of the Liaison Committee I was left in despair. The section that we are debating is based on a complete misconception of how this House and your Lordships' committees operate. Your Lordships' committees, by their very nature, do not and cannot duplicate the work of committees in another place, even when they are in the same general area. The reason is well known to those who serve on these committees: they are totally evidence-based and subject-based; they are not department-based at all. Rarely, if ever, are they devoted to the work of a single department. More importantly, in my opinion and certainly in my experience, our committees are non-party political. None of those that I have had the privilege of serving on has ever voted, for example. The committee about which we are talking, although it was dealing with immensely contentious questions, was able to operate throughout without a vote. Those noble Lords who know the members of that committee will find it rather amazing that we were able to come to a balanced set of conclusions.
	Your Lordships' House is recognised as the best value for money Chamber of all the world's parliamentary democracies. Also—I hope this is not too contentious—we live in an immensely rich and successful economy, therefore the question of a resource constraint cannot arise on any rational grounds. I repeat my despair but I hope that, without any loss of face, the Liaison Committee will look at this matter again and come back with a practical response—I underline the word "practical".
	I am still left feeling sad because, on the assumption that the committee will now follow the advice of your Lordships' House, the new committee will still not effectively be operational before the autumn—in fact, it will probably not be set up until after the Queen's Speech—and that itself is a great pity. I am not sure whether it is the Chairman of Committees or the Lord Privy Seal that we should be addressing here. I think that we are advising the Chairman of Committees, and the main thing is that he should accept what he has heard and say that he will go back and argue your Lordships' case to his committee.

Baroness McIntosh of Hudnall: My Lords, I shall be very brief but I feel that, as a very new and junior member of the Liaison Committee, I must simply underline one or two points made by my noble friend the Leader of the House and the Chairman of Committees.
	The impact of the letter from the chairman of the Commons Select Committee cannot be established as a matter of fact but it is probably fair to say that, because it arrived very late and the committee did not have a great deal of time to consider it, it did not have an overriding impact. The discussion about the committee involved a number of issues, all of which have been touched upon. I think it is fair to say that the committee came to its view taking account of most of the points made by the noble Lord, Lord Fowler, in the committee and here this afternoon and fully respecting the extremely good work already done by his committee which, no doubt, will be done again by a similar committee. The committee did not simply follow the suggestion implicit in the letter from the Commons Select Committee.
	With great respect to my noble friend Lord Peston, I do not think that the resource implication has been addressed. There is an issue here. It was one that the committee felt obligated to take seriously, and I believe it did. But, on balance, the view that the committee took—I quite understand that the feeling of the House is running in a different direction—was based on a number of considerations which were weighed very carefully against what was undoubtedly an extremely strong case put forward by the noble Lord, Lord Fowler, and his colleagues.

Lord Maxton: My Lords, I support the amendment in the name of the noble Lord, Lord Fowler. I do so as someone who served for nine years in the other place on, first, the National Heritage Select Committee and then the Culture, Media and Sport Select Committee. Therefore, I experienced what went on in the committee in the other place, and I do not believe that there would be a clash between the committee there and a committee here.
	Secondly, almost for the first time since I have been in this House, I disagree with my noble friend the Leader of the House. I cannot think of an issue which is more important, or which could be more important in the future, than the broadcasting, communications and media world. It is a world that is changing dramatically. It is not just about broadcasting and entertainment; it is about the internet, and it is now increasingly about how and where we buy goods, how we bank and do a whole range of things and it is about a whole range of services. That is vital. As I said to the committee, if, with the expertise that there is in this House on these areas, the House refuses at least to reconsider this decision, it will be turning its back on the future. If it does that, then it is in danger of putting itself in jeopardy.

Lord McNally: My Lords, I rise to speak with some diffidence because I am a member of the Liaison Committee who was absent on the day in question. I had a medical appointment, which meant that I could not be there. Therefore, I am very pleased that the noble Baroness made the speech that she did because the noble Lord, Lord Tordoff, has already remonstrated with me that the poor Chairman of Committees is always left alone to defend committee decisions.
	However, I support the amendment because, as far as I can read it, it is non-fatal. It just gives us an opportunity to look at this again. The terms in which it has been argued by a succession of speakers should enable the Lord President and the Chairman of Committees, sitting closely together on the Bench, to realise that they should stop digging on this issue. I do so with some history, because I was the party spokesman on broadcasting over four years ago when we first tried to bring this forward. There has been dirty work at the crossroads, trying to frustrate this matter, more than once. I hope that we can take another look at it.
	I also hope that, in making his reply, the Chairman of Committees does not rely quite so much on the arguments in Mr Whittingdale's letter. When he reads Hansard today, he will find that there are quite a lot of echoes of Mr Whittingdale's letter in his opening statement, which seems extraordinary since we have been assured that it had no influence on the committee. Your Lordships know me; I am not one for making cheap debating points.

Noble Lords: Oh!

Lord McNally: My Lords, sometimes you can feel the mood of the House. I hope the chairman has done so this afternoon.

Lord Brabazon of Tara: My Lords, the House seems to want me to reply. We have had quite a good debate.
	First, I assure noble Lords that the letter from the chairman of the DCMS committee, which the noble Lords, Lord Fowler and Lord King, and others mentioned, arrived literally minutes before the meeting started. It was obviously my duty, however, to circulate it to the members of the committee and to give the noble Lord, Lord Fowler, and his colleagues a copy. However, no one had any time to digest it properly.
	I do not know how Mr Whittingdale came to find out that the Liaison Committee was meeting to discuss this proposal that afternoon. That is something of a mystery. However, I agree with the noble Baroness the Leader of the House and the noble Baroness, Lady McIntosh of Hudnall, that this letter did not have as much influence as might be supposed by your Lordships. In fact, the reaction in the committee was rather similar to the reaction in the House when the letter was referred to. Although I know that the noble Lord, Lord McNally, does not like making cheap debating points—only expensive ones will do—I assure him that the report is not based on Mr Whittingdale's letter. It is based on the deliberations of the committee, which I was sorry he was unable to be present for on that occasion.
	The noble Lord, Lord Peston, mentioned resources. I said in my opening speech that the House does not have the staff to support a permanent new unit of committee activity. I am not saying that we could not engage the staff if required. The problem lies in the time taken to recruit new Clerks. If the House wills a committee such as this to be set up, we will respond.

Lord Barnett: My Lords, I am sorry to interrupt the noble Lord. I speak as the last person in the world who would ask to spend more money, but if it is the will of the House for there to be a Select Committee, the resources would be pretty modest in relation to the spending of your Lordships' House.

Lord Brabazon of Tara: My Lords, I thought that I had just said that if it were the will of the House to set up such a committee, then the resources would be found. It is as simple as that. I think I am right in saying, from memory, that the committee work of this House has more than doubled in the last 10 years. There are twice as many committees now as there were 10 or so years ago, and the resources have been found for them. I would like to make that quite clear.
	It is clear that there are strong feelings about the proposal for this broadcasting committee. Therefore, I think that it would be useful to take the opinion of the House on the matter, as it is a subject that the Liaison Committee has already considered on three separate occasions. It would be useful for the committee to be given a clear indication of the level of support across the House for a broadcasting committee, whether or not the outcome is to refer the matter back.

Lord King of Bridgwater: My Lords, will the noble Lord the Chairman of Committees reflect for a moment on what he said? He suggested a most unfortunate course of action, and nobody wants such a divisive event. He has heard the voices in the Chamber. If this matter is put to a vote which is carried against the Liaison Committee—or rather, against the Lord President and Leader of the House—that would be a most unfortunate situation. Nobody wants to see that happen.
	My experience, if I may humbly say so, is that Leaders of both Houses gain most credit and are seen to be strongest when they sometimes accept arguments. They do not die in the ditch, determined to force something through if they can with a whipped vote which gets party loyalties involved—mostly on rather more difficult Motions. This is the easiest Motion; it is not a fatal Motion at all. It just needs the Leader of the House to be big enough to say, "That didn't go quite right. We will look at this again. We don't give any concessions as to what the outcome might be, but we are big enough to say it wasn't quite as we would like to have seen it, so let's look at it again".
	I say to the Leader of the House—because she has intervened in this debate—that her standing in this House is, in incidents such as this, reflected by how she responds to the will of the House. It is not being brave and tough to say, "We'll fight it through". It is often bravest, toughest and smartest to say, "We've got an easy Motion, let's have another go".

Baroness Amos: My Lords, the noble Lord, Lord King, totally misunderstands the position. I am a member of the Liaison Committee with 10 other Members of this House. This is not a party political issue. It is a House matter. I intervened to make a number of issues clear to the House. My recollection is that the committee considered this issue in great detail. I wanted to assure the House that the letter from the chairman of the Select Committee in another place did not impact on the decision taken by the committee in the way that seemed to be assumed in some of the interventions made in the House this afternoon. My recollection is that it had rather the opposite impact, because a number of Members of the committee were rather irritated and annoyed that the chairman of a Select Committee in another place sought to influence a committee making a decision in this House in that way. That is the first point that I wanted to make clear to the House as a member of the committee.
	The second point that I wanted to make clear to the House was that, over the years, there have been occasions when requests have been made for additional sessional committees. Members of this House feel very strongly about different issues at different points in time. The Liaison Committee considered that and felt that it would not be appropriate to make a decision about one sessional committee in isolation. Given the strength of feeling around the House on some other issues and the fact that the committee was aware that there are Members who feel that there should be sessional committees on other issues, it felt that perhaps it should look at the principle of establishing further sessional committees, come back to the House and allow the House to make a decision. The committee could then look at any further requests for sessional committees.
	Those are the two points that I was trying to make clear to the House. I am not acting in a party political way. If the House wants the Liaison Committee to look at this issue again, then the Liaison Committee has to look at this issue again. If the House wants a sessional committee on media and broadcasting, then the House will get a Select Committee on media and broadcasting. But it is important that other Members of this House who feel that they would like a sessional committee on something else do not then come back and say, "If I thought it were possible for there to be a sessional committee, I would have made a request to the Liaison Committee". Those were the only points that I was trying to make. I am very sorry if the noble Lord, Lord King, thought that I was trying to make political points on what is very much a House issue.

Lord King of Bridgwater: My Lords, I listened carefully to the noble Baroness. Of course, I do not accuse her of making political points, but I would point out that she is the Leader of the House. If somebody is going to argue for extra resources for this House, I hope that she would be the person to play a part in that and would not be just an ordinary member of the Liaison Committee. In so far as she is, however, she is as entitled as anybody else to make suggestions to her colleagues on the Liaison Committee on what they should do. My suggestion was made not in a hostile way; I am genuinely worried that we might have a vote that appears to be critical of the Liaison Committee, whichever way it goes. The sensible thing to say is, "Let's have a look at it again". It does not prejudge any of the issues that she went on to address, such as what happens to other Select Committees. The issue would then be engaged with properly and fairly.

Baroness Amos: My Lords, that is a decision for the Chairman of Committees to make; it is not for me as Leader of the House. It is right that the House appreciates and understands that. On the matter of resources, it has been made absolutely clear that if the House wants another committee, it will have to find the resources for it. As the person who argued with the Treasury to enable us to get the money for our new building, I feel that I have played my part.

Lord Brabazon of Tara: My Lords, I cannot avoid noticing the strength of feeling in the House. The noble Lord, Lord King of Bridgwater, was kind enough to call me the Lord President on a couple of occasions—I have not quite yet achieved that. I thought that it might be helpful to get a sense of the opinion of the House in the form of the numbers of people who are in favour of the proposal for a committee and those who are in favour of referring the matter back to the Liaison Committee. However, it is now clear that the least that I can do is agree that the Liaison Committee should again look at this matter, as usual without commitment. I cannot say what the Liaison Committee will say again. I merely repeat that the Liaison Committee has already looked at this matter three times, so a fourth time it will be. I therefore give the undertaking that the Liaison Committee will look at this matter again.

Lord Fowler: My Lords, we have reached a very satisfactory conclusion. I congratulate the Chairman of Committees on coming to it. I thank everyone who has taken part in the debate. I shall not try to précis all the points that were made, but the noble Lord, Lord Peston, made the important point that this is an all-party issue. That argument has come from all sides of the House.
	This is not in any way a criticism of the Lord Chairman or his committee. He was placed in an impossible situation. We now know that resources can be made available—we are very appreciative of that. The Leader of the House said to me that the letter did not influence the committee. I say to her with great respect—

Lord Maxton: My Lords—

Lord Fowler: My Lords, if the honourable gentleman does not mind, I will not give way.

Noble Lords: The noble Lord!

Lord Fowler: My Lords, I beg your Lordships' pardon. For a moment, we were old friends and I forgot which House we were in.
	I am very grateful for what the Lord Chairman said. We are grateful for the conclusion that he has reached and for the fact that he accepts our amendment. I look forward to putting our case again to the Liaison Committee. I know that it will be listened to with the care, sympathy and objectivity for which we have come to respect that committee. I commend the amendment to the House.

On Question, amendment agreed to.
	On Question, Motion, as amended, agreed to.

Climate Change and Sustainable Energy Bill

Lord Whitty: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
	Moved, That the order of commitment be discharged.—(Lord Whitty.)

On Question, Motion agreed to.

Armed Forces Bill

Lord Drayson: My Lords, I beg to move that this Bill be now read a second time. We ask much of our Armed Forces. They will often be in physical danger. They are given the right to use violent force on a scale not available to others, but we demand that as highly professional Armed Forces they act in a controlled and measured way within the law. Their ability to operate in that way obviously depends on demanding training, but also complete clarity on how they are to act and on whose authority. The chain of command does that in peace and on operations, at home or overseas.
	The authority of the chain of command must be credible to those subject to it. It is critical to the delivery of unit cohesion and to operational effectiveness. Commanding officers are responsible for the discipline of those under their command. They exercise their authority primarily through their qualities of leadership and by inspiring the confidence, loyalty and trust of those who serve under them. However, ultimately, the Armed Forces must have the power to enforce discipline through a service criminal justice system. The integrity of the system is essential if we are to retain the confidence of those who are subject to it. It must support operational effectiveness and meet the expectations of members of today's Armed Forces. Above all, it must be fair. The Government are committed to retaining a separate system of service law. The primary purpose of this Bill is to provide the Armed Forces with a criminal justice system which meets these needs. It is not something that we have produced in a vacuum: all three services have been involved from the outset in developing the proposals and we have learnt from recent experience.
	I recognise that the present military criminal justice system has rarely been subject to so much scrutiny as in the past two or three years. I will not discuss specific cases today. No one thinks that the Armed Forces should be above the law. Investigations into alleged serious offences on operations will always be difficult for those involved. Those investigations must be professional and independent. Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context. Any trial of such an offence should be before an impartial tribunal comprising serving members of the Armed Forces, with an independent judge. Of course, there must be proper safeguards and support for those who face investigation and prosecution in the service system.
	Before I turn to some of the key provisions in the Bill I should like to say a few words about one matter which has been at the forefront of our minds as we have developed proposals in the Bill: the problem of undue delay. At worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. I commend the efforts that the services and the Judge Advocate General are making to tackle delay in the current court martial system. The Bill will allow us to make further improvements, some of which I shall touch on.
	The Bill defines offences, provides for the investigation of alleged offences and the arrest, holding in custody and charging of individuals accused of committing an offence. It provides for service personnel to be dealt with summarily by their commanding officer or tried by court martial. It retains the right of service personnel to elect trial by court martial and to appeal to the summary appeal court or the court martial appeal court as appropriate.
	Much in the Bill is familiar. As my right honourable friend the then Secretary of State said in another place, it is evolution not revolution, but the key change is moving from three systems to a single system of service law. Having a single system enables the proper alignment of discipline and command instead of relying on ad hoc arrangements for joint operations as at present. It will mean that all service personnel will have the same powers, duties and rights when they are exercising their disciplinary functions or are being investigated for or charged with an offence. This is not only clearer, it is fairer.
	Part 1 deals with offences. All offences under the Bill are service offences. They are divided into two types. First are those disciplinary offences that are unique to service law—many will be familiar—such as looting or absence without leave. Secondly, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Clause 42 provides for these criminal conduct offences.
	The disciplinary offences have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or are never charged, and are more properly charged under other provisions or dealt with administratively. It is not only the offence of scandalous conduct of officers that has gone. Other examples include allowing sequestration of aircraft or ship by a neutral state in time of war and billeting and requisitioning offences.
	I turn now to the powers of commanding officers. The Bill provides commanding officers, for the first time, with harmonised powers to deal with all those under command of whatever service. We are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I say "theoretical" because, in reality, they do not exercise them over very serious matters, not least because their powers of punishment are far too limited. But we are increasing the powers of Army and Air Force commanding officers to deal with a small number of additional criminal offences set out in Part 2 of Schedule 1—in straightforward cases, Royal Navy commanding officers already deal with these summarily—and their powers of punishment are increased from 60 to 90 days' detention, in line with those of naval commanding officers now. The exercise of both these additional powers will be subject to the approval of a higher authority.
	The summary powers of commanding officers recognise the importance of being able to deal with such matters expeditiously, and we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant-colonel and equivalent, subject to certain conditions.
	Part 5 of the Bill sets out the duties of commanding officers in respect of allegations that serious offences have been committed. It provides in Clauses 113 and 114 that for specified, inherently serious offences and those committed where certain prescribed circumstances apply, the commanding officer will be required to inform the service police as soon as practicable. The service police, who may already be investigating the matter, are in turn required to refer the case to the independent Director of Service Prosecutions if they think that there is sufficient evidence to charge one of these offences. The Director of Service Prosecutions will decide whether to bring charges, on the basis of the proper tests and a real understanding of the military context.
	However, we have taken specific powers to ensure that the decision whether to charge and what charge should be brought is not made without the commanding officer knowing what is going on and having the responsibility of ensuring that the director is aware of any facts which the CO thinks may be relevant to the decisions which the director will be taking.
	It is worth giving a categorical assurance on that point. The power for the commanding officer to be kept informed and to provide to the prosecuting authority any information that he thinks is relevant will be set out in regulations under Clause 127. In particular, I draw noble Lords' attention to Clause 127(2)(e), which contains a power to require,
	"prescribed persons to be notified of prescribed matters".
	It is sensible to do that because commanding officers might have valuable information that could assist the prosecuting authority in the tests that must be applied before proceeding to charge individuals. We expect that COs will do this. They will see it as part of their duty to the individual and to the interests of justice to do so. Their training will reinforce that.
	Under the existing legislation, there is provision in regulations for the commanding officer to submit to higher authority any information that he has which, in his opinion, may be material to the institution of court martial or other proceedings. That applies after the charge has been brought. The Bill gives us, for the first time, the opportunity for the prosecuting authority to have information on the service context before a charge is brought.
	At present, the commanding officer also has a power to dismiss a charge—whether for a serious offence or not—without any form of hearing of the evidence. Under the existing law, the result of such action is that, even in very serious matters, no further proceedings may take place in the military system. No decision on the case can be taken by the independent service prosecuting authority, and the evidence is never tested.
	That is not necessarily the end of the matter because, at present, where our civilian courts also have jurisdiction, the civilian authorities may then take action. The jurisdiction of the civilian courts may come into play as a result of the services themselves being prevented from taking any further action on the matter through just such a technicality. We want to address that.
	The Bill will therefore ensure that the Director of Service Prosecutions will decide on serious cases, and that on serious cases a commanding officer cannot prevent further action by the services themselves, so we are removing the CO's power to dismiss charges without any form of hearing. I know that some see this as undermining the chain of command. I do not agree. It is simply wrong that, where there has been sufficient evidence to charge a soldier with a serious offence, the commanding officer can simply decide, without any hearing, that the soldier will not be tried for that offence, and that his decision then prevents any further proceedings in the military system. I do not think that commanding officers should have this responsibility, and nor do they.
	As General Sir Mike Jackson said in giving evidence to the Select Committee on the Bill in another place:
	"I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to me to be a matter that should properly go to court martial, for the evidence to be tested there".
	If we believe that service personnel are not above the law, as long as commanding officers have these powers the services will be open to the recourse to civilian law as in the Trooper Williams case.
	All offences can properly be dealt with under service law. The court martial is, and will remain, an ECHR-compliant court. We think it right that even the most serious cases should be resolved within the service system once proceedings have begun.
	Clause 115 puts a clear duty on commanding officers to ensure that allegations of other, less serious offences are appropriately investigated. That is an objective test. These offences make up by far the majority of those committed by service personnel. It does not necessarily mean that the investigation has to be carried out by the service police. It is for the commanding officer to call them in if it is appropriate. Some 95 per cent of matters are dealt with summarily now and we expect that to be the same under the Bill.
	I want to make it clear that, in the conduct of investigations, the service police work independently of the chain of command and of Ministers. They do a professional job, sometimes in the most demanding, difficult and dangerous circumstances. The Bill reinforces their relationship with the Director of Service Prosecutions in a similar way to their civilian counterparts. This should help to improve the quality and timeliness of investigations and reduce delay.
	Where the commanding officer is considering what action to take in respect of the offences over which he has powers, he will of course, as now, have legal advice available. Under the Bill, as now, he may choose to deal with the offence summarily, or he may decide to refer the matter to the prosecuting authority because he does not wish to exercise his summary powers and believes a court martial would be more appropriate, or he may discontinue proceedings. But that would not prevent further action by the services at a later stage, if it were justified.
	If the commanding officer deals with the matter summarily and finds the matter proved, he will go on to award a punishment. Again, this is familiar. Where he refers the matter to the Director of Service Prosecutions, it is the director who will decide whether to bring a prosecution and what the charge shall be. In all cases tried by the court martial, the Director of Service Prosecutions will determine the charge but it will be the commanding officer who formally brings it by notifying the individual concerned. This is important. It keeps the commanding officer directly involved. It reinforces his role by implementing his duty of care towards someone under his command who is subject to proceedings under service law. They must be properly supported and advised.
	The changes I have already described will bring improvements in speed and efficiency. At the moment, every case must first go to the commanding officer. He looks into the matter. In many cases he will ask the service police to investigate. If he thinks it should go to court martial, he refers it to higher authority in the chain of command. In turn, higher authority refers the case to the prosecuting authority.
	In another place some concern was expressed about the removal of the power for the Defence Council to review the findings and sentences of the court martial. This is the power for the chain of command to quash the court's finding or substitute another sentence which in their opinion is no more severe than the one awarded by the court. It is non-judicial interference in the decisions of a court martial, which is a compliant court, and it can no longer be justified, especially as there are now full appeal rights to the courts martial appeal court. The Government recognise that removing this power without providing for a "slip rule" to respond to technical errors in sentencing was a lacuna in the Bill. We have looked carefully at how we can rectify this while retaining service input to sentencing. But we wanted to ensure that the military input into sentencing was retained. The Government will table an amendment to achieve this in Committee. It is very closely based on the power of civilian courts under the Powers of Criminal Courts (Sentencing) Act 2000.
	The Bill creates two military courts—the court martial, under Clause 153, and the summary appeal court, under Clause 139—to replace existing courts provided for under the separate discipline Acts. The court martial will be a standing court and will replace courts martial convened on an ad hoc basis to deal with individual trials. Like the Crown Court, it will be able to sit in more than one place at a time and deal with different cases. It is not a single court in permanent session. The main advantages of a standing court are that it will be more efficient, reducing some administrative arrangements and making it easier to arrange for preliminary matters to be dealt with.
	We expect that, in the main, service personnel will be tried by courts comprising members of their own service and that, as now, most matters will be dealt with by courts comprising three service members and a judge advocate, but five members or more for more serious offences. In addition, the Bill creates a service civilian court under Clause 276 to replace the standing civilian court that was established in 1976. Like its predecessor, this court may only sit overseas. It has powers equivalent to those of a magistrates' court when dealing with offences committed by those civilians who are described in the Bill as subject to service discipline. For the court martial and the service civilian court, the Bill creates a more modern and appropriate sentencing regime which primarily reflects changes introduced by the Criminal Justice Act 2003.
	I would like to turn to the provisions for dealing with the redress of complaints in Clauses 332 to 335. The rights and freedoms the rest of us enjoy are necessarily restricted in the case of service personnel. I think there can be no argument that, given these special circumstances, they should have a statutory right to make a complaint about any matter that affects them personally. Equally, we are committed to retaining the role of the chain of command in investigating and resolving complaints.
	We have known for some time that the current provisions for dealing with complaints of individual members of the Armed Forces are not working as well as they should. The chief complaint about the complaint system was the time taken to resolve complaints but we have to acknowledge other problems with the current system. It is clear that individual service-men and women have not had sufficient information or awareness about their right to make a complaint and how to go about it. There is too much evidence that individuals have been positively discouraged from making a complaint, or have no confidence that their complaint will be taken seriously, or think that making a complaint will have a detrimental effect on them.
	These issues were brought into sharp and difficult focus by Nicholas Blake's report. We want to address all these issues in the Bill. We think that the provisions, as they stand, together with a related proposal for a non-statutory but independent review of the redress system, go a long way towards doing this. So what are they?
	First, the Bill introduces a more streamlined system which will reduce bureaucracy and provide for the majority of matters that cannot be resolved by the commanding officer to pass quickly to a panel outside the chain of command with powers delegated to it by the Defence Council. We have provided in certain cases for a person who is independent of the chain of command, and not a civil servant, to sit on the panel. Whether an independent person sits on the panel will depend on the nature of the complaint; for example, it is unlikely that an independent person will add value if the complaint is about the quality of the food in a mess. But an independent could add value where the complaint is about a course of conduct or type of behaviour that amounts to bullying.
	A different panel will be convened for each complaint. The senior membership will never be below one star. The panel will have the full powers of the Defence Council for dealing with redress delegated to it, including financial powers but the Defence Council will almost certainly reserve some matters for decision by the council or the relevant service board, for example, complaints against decisions by a service board or by a very senior officer, of three-star rank or above.
	These complaints may include cases where it had been decided that an officer's service was to be terminated as a result of administrative action, for example following a civil court conviction, or where a person had disputed an appraisal report completed by a three-star officer. In parallel, but on a non-statutory basis, we had initially proposed that the complaints process would be reviewed annually and publicly by an independent external reviewer. In response to Nicholas Blake's recommendation, and to representations made by Members during the consideration of this Bill in another place, we propose to go further.
	We will extend the role of the external reviewer to enable him to receive complaints directly from a service person or allegations from a family member or other third party. Where that happens, the commissioner will be able to refer the complaint or allegation directly to the right level of the chain of command, usually the commanding officer. That will trigger machinery so that if there is a complaint it will be investigated. Whatever happens, the commissioner will be informed of the outcome of that complaint.
	We shall table amendments to the Bill to make this appointment of a service complaints commissioner statutory. The commissioner would have direct access to Ministers. He would report annually and the report would be published. We believe that this system preserves the responsibility of the chain of command for investigating and dealing with complaints and allegations while offering a complementary route for complaints to be placed in the hands of the commanding officer. This may be of particular value to those who might feel inhibited from going directly to the commanding officer.
	A further area where we are harmonising and modernising provisions is in relation to boards of inquiry, or service inquiries as they will be known under the Bill. We think it is essential that the services keep the ability to hold internal investigations with the purpose of establishing the facts about an incident and making recommendations to prevent it happening again. It does not replace a coroner's inquest and is not, and does not purport to be, a tribunal that is compliant with Article 2 of the European Convention on Human Rights.
	As now, Clause 339 provides for much of the detail to be made in subordinate legislation. Again, this is an area on which Nicholas Blake made recommendations in his report. We agree with Mr Blake that families should be given as much information as possible about the proceedings and the findings. Family members may also attend to give evidence. But we would not wish to extend to next of kin or their representatives a statutory right to attend such inquiries, or to hold such inquiries in public. This would change the character of the inquiry, which is internal and focused on preventing a recurrence of the incident or accident, and would confuse the purpose of an inquiry with that of an inquest or court of law. As a result, a right of attendance would give rise to expectations which the inquiry would not always meet. We also have a concern to ensure that there are no inhibitions on witnesses that might affect the frankness of evidence. There are practical concerns, too, given how inquiries are conducted often very quickly and overseas. We also accept that there may be circumstances in which a family's attendance at a particular inquiry would be acceptable, when it would not impede its effectiveness. In these circumstances, we are content that some discretion about attendance may be exercised.
	We ask an enormous amount of the men and women of our Armed Forces, regular and reserves, and their families who support them. We place particular trust in commanding officers and the chain of command, as do those under command, and we take pride in the exemplary way in which they conduct themselves, sometimes in very difficult and dangerous circumstances. I think that we all share a common purpose. We want to provide the Armed Forces with a fair and modern service criminal justice system that will better support the way in which they train and operate today.
	I have mentioned two areas where the Government intend to bring forward amendments. We expect to table a small number of other amendments to clarify or improve existing provisions. I shall ensure that noble Lords are given these in good time. I look forward to the detailed scrutiny that we shall give the Bill in Committee and I commend it to the House.
	Moved, That the Bill be now read a second time.—(Lord Drayson.)

Lord Astor of Hever: My Lords, I thank the Minister for explaining what the Government seek to achieve by bringing forward this Bill. With a few important exceptions, we welcome the Bill. It has been very helpful to us during our consideration of the Bill to have had such clear Explanatory Notes, and the Minister and his colleagues are fortunate to have been so well supported by an excellent Bill team.
	The Bill has been changed and improved since its original introduction in the other place, and a number of sensible amendments proposed by my honourable friend the Member for Aldershot, as well as some unhelpful ones proposed by others, were resisted. We look to persuade the Government to change their mind here on some at least of the former and congratulate them on their resistance to the latter.
	As stated yesterday by the Minister for the Armed Forces, we in this House expect to be presented with further government amendments to provide for a services complaints commission; the Minister has just mentioned that. These amendments, when we have them, will be a qualified and partial step towards meeting the recommendations of Mr Nicholas Blake QC, arising from his carefully considered report on the distressing events that took place at Deepcut barracks. The assessment by Mr Blake and others of the important and difficult issue of harassment was accepted by the Government, but they have none the less avoided proposing legislation that might help. We have therefore prepared further amendments addressing that important issue.
	Similarly, the Government claim to have accepted Mr Blake's recommendations in relation to the "independent assurance" of,
	"the military justice system and the military complaints system".
	However, we want to know why the commissioner will not be embodied in the military system. We believe that it is essential that his appointment does not undermine the chain of command. Instead, the Government have expressed their intention to establish these military assurance and inspection systems under the civil Police and Justice Bill. Can the Minister clarify the Government's thinking on this point? In our view, military justice must be a wholly distinct and different process of its own. Thus the procedures for the assurance and inspection of the system must be properly and distinctively entrenched in military law—that is to say, in the Bill before us.
	At this stage, I shall make two points arising from Deepcut. First, both the government amendments and our intended amendments are a new area for consideration and scrutiny. Their terms have not been considered in the other place, so a particular duty falls on your Lordships' House to scrutinise them carefully.
	The second is that, by definition, they set out to change the present law as it is and as it was understood to be. Fortunately, this last consideration does not apply to much of the substance of the Bill. Its general purpose and effect is to re-enact in a consolidated form the main provisions of the three single service discipline Acts. This is a necessary thing to do and one that is seriously overdue. The old Acts had been so frequently and extensively amended that they had become unworkable and indeed unacceptable as foundation documents.
	That the special constraints and duties that apply to all members of the Armed Forces and to those civilians who live and work alongside them should be set out in a single coherent body of law is reasonable provided that the terms of such a body of law sensibly recognise that some circumstances alter cases. Nevertheless, there are fundamental differences between each of the services, and the Select Committee in the other place did recommend as a result of taking evidence that courts-martial panels ought to be composed of a majority of personnel of the service of the accused.
	It is surely self-evident that those of our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. They have in appropriate circumstances to use force, including as necessary lethal force—a lawful power and duty in fact to kill. It is precisely that body of law that so authorises them and disciplines them in that exceptional power and duty which we now have before us for our careful consideration and adjustment.
	One thread in the debate cropping up at certain points in the Government's arguments, although heard more strongly from elsewhere, is that the process of military law should become as far as possible the same as the processes of civilian law—that an objective should be to assimilate. I have to say again that this logic—that one size should fit all circumstances—is not an objective that we share. Our objective is that the governing document of military law—this Bill when enacted—should properly recognise the unique features of military duty and should be drawn up and applied accordingly.
	Disciplined Armed Forces operate at all times within the law, but a law that clearly and properly recognises the exacting circumstances in which it has to apply. It is this rationale, the separateness of military justice, which will form a continuing theme in the amendments to the Bill that we will propose. We shall focus particularly on the need to protect the chain of command. That is, I believe, a common objective of all concerned with military justice and discipline. The Minister reiterated it in his Deepcut Statement in the other place yesterday. It is the feature of the Bill that has attracted the most attention among those serving today in the Armed Forces who have properly expressed their views to us and probably to many other noble Lords speaking this afternoon.
	To achieve that objective—a continuing, positive and undiminished role for the chain of command—a number of adjustments will need to be made to the Bill as it has come to us. We are concerned that the Government are eroding the powers of commanding officers. COs have to act. If they do not, they put their entire ship, regiment or squadron at risk. They have to make hard decisions, frequently based on imperfect information. If they get it wrong, they have to suffer the consequences.
	We cannot allow the creation of a culture in the Armed Forces, particularly the Army, where soldiers are too scared to open fire because they fear the threat of prosecution. British soldiers are trained to react instinctively to events. The Minister will be aware of the survey carried out at the end of last year by the Army within 7th Armoured Brigade in Iraq which found that there is a widespread fear of opening fire and of being investigated for opening fire.
	Armed conflicts—wars, to use the simple term—are usually conducted against opponents who reject what we see as the rules of civil society. That does not mean that we ourselves should reject those rules, but it does mean that our Armed Forces must be prepared and authorised to operate under rules that recognise that this may be, and indeed is likely to be, the case with their opponents. The job of the Royal Military Police requires diligence and common sense. It is the latter that appears in some cases to have been lost. Every "incident" has to be investigated for the possibility of prosecution, very possibly on the claims of the enemy or of those seeking financial gain. This law must recognise that the incident will always seem clearer in the artificial arena of the court of law than in the split second of reality that it took at the time. That is why we shall seek to insist that the Director of Service Prosecutions should have recent and relevant military experience. I make no apology for expressing my feelings on that with some passion.
	The Minister mentioned delays. Recent cases have shown that the existing system is disgracefully slow. I welcome the setting up of the Adjutant-General's delay action group, and I know that the Adjutant-General is working hard to cut down delays; yet very little in the Bill attempts to speed things up. We shall therefore table an amendment to Chapter 2 of the Bill that sets time limits to proceedings to the effect that unless proceedings are brought from start of investigations to start of court proceedings within one year, the matter will be returned to the CO for summary judgment. We on these Benches intend to emphasise the importance that we attach to preventing the recurrence of such intolerable delays in justice by, if necessary, taking the opinion of the House.
	The recent acquittal in the court martial of Sergeant Selman and the other soldiers on charges arising out of an event that occurred more than three years before the trial opened is a striking example of the human dimension of what may, and maybe should not, arise in our system of military justice. It also understandably gave rise to strongly phrased expressions of concern that the acquittals meant that the prosecutions were wrongly undertaken in the first place. The noble and learned Lord the Attorney-General, writing in the Daily Telegraph, has defended the process in equally strong phrases. But it is the duty of the Opposition when a succession of such high-profile cases fail to test rigorously whether, in reaching the decision to prosecute, correct procedures have been established and correctly followed and proper tests properly applied. The Prime Minister said last week that he hoped that lessons would be learnt by the prosecuting authorities. This is not the time or place to go into detail, but I draw the attention of the House to the set of 10 Questions for Written Answers that I have tabled. I hope that they will receive candid rather than shuffling or evasive answers. They go to the working heart of the system that this Bill creates.
	Another widespread view that has been expressed to us is that the replacement of serving uniformed officers by civilian communication experts—or spin doctors by another name—as public spokesmen for the Armed Forces has led to damaging consequences. We believe that a return to the earlier practice would assist better and more direct understanding of the Armed Forces, and we shall support any suitable amendment in that sense. My noble friend Lord Kingsland will cover the supervisory role of the Attorney-General, and my noble friend Lord Campbell of Alloway has an amendment on that issue. I hope that the noble and learned Lord the Attorney-General will respond on this issue in Committee. He ducked out of our debate last July. Defending the Government's ban on hunting was placed higher on his list of priorities than were the interests of our Armed Forces.
	Other amendments that we will bring forward include placing the rules of engagement on a statutory basis, which is not the case at present, and giving statutory basis also to the Manual of Military Law. We shall be looking, too, to see whether some of the procedures in military law and justice pioneered in Australia may be of value.
	We have a wealth of experience in our speakers' list, from all sides of the House, and I shall listen carefully to all that is said. I hope that the Government will do the same—listen carefully, even when they are initially disposed to disagree, and that, out of our deliberations today and subsequently, a Bill will emerge that meets our limited, but specific, concerns, as well as serving the general purposes on which we are all agreed.

Lord Thomas of Gresford: My Lords, I declare an interest as having appeared in a number of courts martial, including some that have been referred to. That inhibits me from commenting on ongoing cases, but it allows me to speak with some practical knowledge of the way in which the current system works and with some ideas as to how the Bill could be improved.
	We on these Benches welcome the bringing together of all three services in a common code and with common procedure. That should ensure consistency and fairness across the board. In considering consistency, we welcome the appointment of a Director of Service Prosecutions, who should be independent of the chain of command, but, we believe, must necessarily have military experience, so that he can take decisions within the military context.
	We also welcome the creation of the court martial as an institution. Until now, courts martial have been ad hoc tribunals, set up for individual cases. Now, however, with the building of new court centres at Bulford, Catterick and Colchester, and with the professionalism that is involved in the courts administration officer who already exists and who, no doubt, will be appointed under this Bill, we hope that the terrible delays that have occurred will significantly be reduced.
	Clauses 55 to 62 refer to time limits for charging within six months of a person leaving the services or ceasing to be subject to service law, but there is still no time limit for the commencement of trial. I was encouraged to hear the noble Lord, Lord Astor, say that his party intends to table an amendment that will set a limit within which proceedings should be brought and the trial commenced. Similarly, we welcome the Service Civilian Court, although I shall return to the matter of civilians who are subject to military law.
	I pay tribute to the bravery and professionalism of our armed services in all fields of conflict. Carrying out the policies of the Government of the day is a dangerous occupation. It is not abstract or theoretical that the people who carry out those policies do so at the risk of their own lives and well-being. It is absolutely important that, when they do so, they can be confident that they will be treated fairly, both in matters of discipline and in the trial of any alleged criminal conduct. The first essential is that recruits are treated properly. There should be no ill-treatment, harassment, bullying or discrimination. Not only is that harmful to the soldiers themselves, but it inhibits proper recruitment to the armed services.
	We welcome the proposals for the redress of individual grievances as far as they go. Initially, the Government intended that the service complaint panel should include an independent member and that the complaints process should be reviewed annually and publicly by the independent external reviewer. However, the Government have responded rather disappointingly to the Deepcut review and to representations made in another place by proposing not that there should be an ombudsman, as Nicholas Blake advised, but that the external reviewer's role should be extended in a limited way. That is nothing like the ombudsman role envisaged by Blake. The Deepcut review suggested that the powers of the ombudsman should include the ability to initiate prosecutorial proceedings, if the ombudsman felt that a complaint should be prosecuted. By contrast, the Government's proposals announced yesterday suggested that the powers of the ombudsman—or what they call a service complaints commissioner—should be restricted to receiving a complaint, referring that complaint to a higher authority and remaining informed of the outcome of the complaint. That is a power of recommendation, not a power of taking action. We think that this should be looked at when the Government bring forward their proposals in an amendment, which they are preparing.
	I also follow the noble Lord, Lord Astor, in talking about the rules of engagement. The trained soldier needs to know the framework within which he operates. The rules of engagement for the invasion of Iraq were to seek and destroy the enemy either by killing or neutralising its forces. That is what the invading forces were trained to do; that is what they were up for. However, no fresh rules of engagement were issued for many months after the conflict was over. That matter emerged in the paratroopers' proceedings last September and October in Colchester. British forces were judged as though they were policemen, subject to all the restraints and training of peacekeepers that one might get in the domestic situation. It is vital that in whatever field our forces operate the rules of engagement are clear and precise and are conveyed to those obliged to perform their duties within those rules. That should be taken into account in decisions to investigate alleged criminal offences and in decisions to prosecute. For the purposes of investigation, let there be no more situations arising where our troops are subject to investigations but where the investigators do not have adequate resources—in money or manpower—to carry out the sort of thorough investigation that the seriousness of the allegations demands.
	Turning to the Bill and the "First Group of Parts", no one could object to the discipline offences listed in Clauses 1 to 41 being tried by the court martial. These certainly envisage military matters which are undoubtedly within the experience of the members of the panel: assisting the enemy, mutiny, desertion, insubordination and so on. What is objectionable is the inclusion under the "Discipline" general heading of "Criminal conduct", under Clause 42, which gives jurisdiction to the court martial over any offence punishable under the law of England and Wales, including the infliction of punishment. Any offence in the criminal calendar can be brought as a disciplinary matter under Clause 42. This is not a matter of discipline. A person subject to military law ought not to be tried and punished for murder, for example, as a matter of forces discipline. This has practical implications.
	Clause 19, which concerns conduct prejudicial to good order and discipline and covers a wide range of behaviour, Clause 20 on misconduct through drink and drugs, Clause 21 on fighting or threatening behaviour and Clause 23 on disgraceful conduct of a cruel or indecent kind are all matters that a military court can properly deal with as disciplinary. So why is it necessary to include the entire corpus of the criminal law within the jurisdiction of the court martial?
	Another matter that causes me concern, as it has for many years, is the way in which civilians who are subject to service discipline may be tried by court martial. For example, any person who is a member of the family of a serving soldier in a base overseas is subject to service discipline. I recall the case of Martin, which eventually ended up before the Appeal Committee of this House. It was a case in which a 17 year-old boy was charged with murder in Germany. Although he was incarcerated pending the trial in this country, and although his father had left the forces and he had absolutely no connection with the Army at the time, he was flown back to Germany to be tried, at the age of 19, by a court martial of officers with, I think, two civilians from the Civil Service also taking part in the hearing. In his judgment, the noble and learned Lord, Lord Slynn of Hadley, said:
	"As a matter of first impression it seemed to me disturbing and indeed wrong in principle that a 19-year-old civilian, albeit the son of a serving soldier at the time of the murder he was alleged to have committed in Germany, who had with his father returned to England more than a year before trial, should be sent back to Germany for trial by court-martial and thereby be deprived of the right, or at the least of the opportunity, of trial by jury".
	The Appellate Committee unanimously held that, if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. But the noble and learned Lord, Lord Slynn of Hadley, said that it was disturbing and wrong in principle, and the noble and learned Lord, Lord Hope, said that it was quite inappropriate. It is matters of that sort that I shall endeavour to discuss with your Lordships in Committee.
	There are other matters of procedural drawbacks that I think we will also have to discuss. With regard to the composition of the court, I disagree with the suggestion that a soldier should be tried by Army officers and warrant officers and not by a mixed pool. It seems to me that if we are bringing the services together and creating one single body—the court martial—it is appropriate that the panel should come from all the services. That would help with consistency and perhaps it would help to break down the tensions between the various services if a person were tried in that way. I appreciate that there are differences between the services, but a panel of officers and warrant officers should be able to deal with the matter without prejudices of that sort.
	Another matter that I think we must consider is the number of members of the tribunal—whether it should be three, five or, in serious cases, as now, seven. Again, one has to compare that with the jury in the Crown Court in this country, which has 12 members. If the provisions in military law were the same as those in civilian law, the majority verdicts would be declared, open and transparent. But, as most of your Lordships will know, the court martial can decide by a majority—which, with seven people, may be four to three, or, if there are five, three to two—without ever revealing that it is a majority decision. So, if a civilian charge as serious as murder should remain with the court martial, a person may be found guilty of that crime when the tribunal is split four to three and he will never know about it. As the Judge Advocate General suggested to the committee in another place, it is appropriate that we look again at majority verdicts; they should be declared and it should be possible to have only one or, at the very most, two dissentients before a verdict of guilty is brought in.
	Another matter is sentencing. A jury does not sentence in the Crown Court; it plays no part in it. However, the responsibility for sentencing in a court martial rests not with a judge but with the tribunal. The judge plays a part; he has an equal vote with the members of the panel, and a casting vote if they are equally split. However, we are dealing with a new world. The Bill introduces community sentences. Unlike for magistrates, there is no training in sentencing matters for court martial panel members. I shall suggest to your Lordships that the Bill be amended so that sentencing should be by judge alone, or at least with an assessor. The service input into sentencing is fine when you are dealing with disciplinary matters but, if you are going to deal with serious criminal conduct through the court martial system, the judge should decide the appropriate sentence.
	This is a large Bill and there is a long way to go. I hope that, at the end of it, we will produce for military people a system of justice that they deserve for the great service that they afford to us all.

Lord Bramall: My Lords, it is already clear that there is a good deal to discuss in this comprehensive new Bill. I will concentrate on just one aspect: the responsibility of the commanding officer and the chain of command in the disciplinary system.
	As many noble Lords will no doubt agree, the Government have shown quite a propensity for committing our Armed Forces to conflicts which, perhaps predictably and at an early stage, develop into a twilight zone of combat. Although it may not be consistent with all-out war, it can impose on our servicemen the same pressures and need to take instant life and death decisions because insurgency and terrorism flourish, making it difficult to differentiate between friend and foe.
	At the same time, because of the full glare of media interest and scrutiny that this phase attracts, to say nothing of the disgraceful activities of ambulance-chasing lawyers, there is more pressure at home and abroad to initiate legal proceedings against our servicemen who may be thought to have exceeded the minimum force consistent with their military tasks. It is therefore important that this new Armed Forces Bill is able, in such circumstances of active service, to strike a just balance between ensuring that the Armed Forces operate within the rule of law and are properly and fairly disciplined if they do not, without at the same time hampering and compromising their effectiveness and the performance of their duty, or putting at risk their lives and those of their comrades. As anybody who has had experience of such situations knows, this is not always an easy balance to strike. Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established. As we have heard, that is not always done.
	The Bill must therefore be carefully scrutinised against this background. I believe, as do many of my noble and gallant friends, that the key to this lies as much with the responsibilities of the commanding officer and the chain of command as it does with the military prosecuting authority, often far removed from the scene of the action. Although the prosecuting authority—essentially a military stand-alone authority with a military director—must have the final say on whether charges for serious Schedule 2 offences should be heard at court martial on the basis of whether a conviction would be possible, the commanding officers and their immediate superiors are most likely to have the best knowledge of the actual circumstances at the time. Moreover, morale, commitment, steadiness under pressure and, indeed, inspiration and confidence to perform duty to the utmost, depend largely on the leadership and authority of the commanding officer in the various different environments. As the noble Lord, Lord Astor of Hever, said, the commanding officer must remain a key figure in the morale and discipline of our Armed Forces.
	Although I would not accept that the Williams case was a good reason for limiting the commanding officer's present powers to dismiss any charge if he does not think there is a case to answer, in that case the commanding officer's decision, taken in good faith based on legal advice in the theatre, was subsequently shown to be not unreasonable, with the fault lying more in him not being fully supported in Whitehall, as he could have been, despite contradictory legal advice about whether a prima facie case existed.
	I do not have too much difficulty in accepting that a commanding officer should no longer retain the powers to dismiss serious charges with which he does not have, or will no longer have, the power to deal summarily. But all of this makes it even more important that the commanding officer should not be removed completely from the dispensation of justice for his men, even in serious cases, and can return their trust in him by backing them if the circumstances make that appropriate or by supporting them being disciplined if that is necessary for the preservation of good order and the highest legal and ethical standards. At the moment, the Bill is not entirely satisfactory in that respect.
	There seem to be three ways of keeping commanding officers properly in what one might describe as the "disciplinary loop" without slowing up the process of administering justice, which must be quick and which has certainly not been so in recent years. That point has already been highlighted in this debate.
	The first of those—this is properly covered in the Bill—is that the commanding officer will continue to have the power to deal with all disciplinary offences, other than the most serious Schedule 2 cases, and that all charges should initially be brought before him, with the proviso that where necessary and appropriate charges would be referred for investigation by the service police. As the Minister has already pointed out, in the case of the Army, the commanding officer's powers have been strengthened in certain respects.
	The second way is under Clause 113(2), which reflects "the shooting investigation policy". This is extremely vague and confusing, as indeed is the whole Bill, with its convoluted drafting. It must be something of a nightmare to any adjutant or regimental sergeant major trying to master it, but I suppose they will be eased through it in some way.
	Clause 113(2) gives the commanding officer some jurisdiction about whether he refers a matter to the service police, as the Minister at the Select Committee hearing in another place confirmed. Would, for instance, that jurisdiction cover a killing which was seen by eye witnesses, perhaps at command level, to be clearly within the rules of engagement? What about accidental discharges, which are very prevalent on active service, perhaps bringing injury to a comrade? The question of referral to the police needs to be cleared up with further guidance about what constitutes criminality in cases of that sort.
	Finally, there would be the procedure not yet included in the Bill—although the Minister covered it in respect of supplementary regulations—which I hope will be contained in an amendment to be tabled in due course and which to my mind is essential. That is for the commanding officer to be informed of all submissions put forward by the service police to the director of the military prosecuting authority setting out the basis for that submission, not just those referring to less serious offences for action by the commanding officer as written into the Bill. The commanding officer should then have the opportunity to make a report to the director through, I suggest, his superior headquarters. This is important in cases where the commanding officer might be unduly protective. Superior headquarters could provide a broader perspective which would keep the military director of prosecutions fully in touch with what was going on on the ground. As the director would consider any report from the commanding officer at the same time as he considered the service police report, there should be no undue delay.
	The involvement in some form of the chain of command is important. It should be written into the Bill and not be left to supplementary regulations as suggested by the Minister. This is important because the Bill combines the three service discipline Acts into one single Act and, as it admits, reduces the differences between the systems to a minimum.
	Whatever the Strategic Defence Review may have claimed, joint arrangements are hardly new. Having taken part more than 60 years ago in the largest combined operation that the world has ever seen or, thankfully, is ever likely to see, I can say this with some feeling. The services remain very different animals—if they do no object to that description—with different pressures on them in combat and often with different disciplinary imperatives and requirements. Many operations are, rightly, jointly conducted and, one would hope, better co-ordinated, but some remain largely single service. When you treat all service personnel alike as regards, for instance, a single prosecuting authority under one director who may be from any service—if he is not a civilian—and a standing court martial, there may, and probably would, be advantages from a legal point of view but, inevitably, you will lose some awareness of the special circumstances and pressures pertaining to personnel in that particular service at that particular time.
	Although I can see the advantages of being able to deal from a disciplinary point of view with, for example, men and women of a different service who happen on operation to come under a single service command, much of the Bill has elements of bureaucratic tidiness about it, which makes it—I stress it again—even more important that the chain of command remains in the loop. I hope, therefore, that noble Lords will look with favour on the simple and constructive amendments which would achieve this when they are brought forward at the proper time.

Lord Judd: My Lords, it is always a challenge and a privilege to follow the noble and gallant Lord, Lord Bramall. There can be few debates in this House which enjoy such a formidable body of distinguished, direct and relevant experience as we have with us today. It is good to be able to hear at first hand so much insight, experience and honest advice.
	As a layman, albeit a former junior officer in the Royal Air Force and a former defence Minister, I am glad to be able to take the opportunity presented by this debate to pay unqualified tribute to our servicemen and women, to the civilians who work so closely with them, to our service families—especially the bereaved—and to Ministers who carry so much responsibility on our behalf. The courage and sacrifice speak for themselves. We must never take them for granted. They bring home to us every day our own heavy responsibilities.
	It seems to me therefore essential to put the issues raised by this Bill in a wider context. The starting point in any objective consideration of defence issues is surely the nature of the threat. We then have to examine honestly the nature of the resources—personnel, equipment and organisational structure—that we have at our disposal and assess how far they meet the challenge.
	If the nature of the threat changes, radical responses may be necessary. Long established traditions and patterns of expenditure may prove inappropriate. Not to be honest about that—it can be very difficult—is to fail the country, to betray our servicemen and women and to waste public funds which could be put to better use. The unforgivable political crime is to initiate military action for which adequate and appropriate resources are not available. That can aggravate pressures and tensions which become acute with direct implications for discipline and justice.
	The world which confronts us in 2006 is highly complex. It is not, I would argue, more complex or dangerous than in the earlier years of many of us in this House, but with the end of the stark and clear confrontations of the overarching Cold War, the complexities have become more obvious. One of my uncles, a captain in the Indian Army, was killed in an uprising on the North-West Frontier in the early 1930s, having previously served in Baghdad. The present complexities have deep roots in history. These complexities were masked by the Cold War, but they remained as real as ever. The availability of highly lethal, flexible, orthodox and unorthodox weapons—whatever in reality can now be regarded as a valid distinction between the two—has added a sinister dimension to the dangers.
	From the private to the general, from the sailor to the admiral, from the airman to the air marshal, in the face of the complexities that I have described the demands are immense. They are not likely to diminish. That is the context within which we must approach our deliberations on military discipline and justice. It is not simply a matter internal to the services. It has far-reaching consequences for the political reality within which we expect our services to operate and for the political solutions we seek to crises across the world.
	A disciplined fighting force, such as we have seen in the past few days in Afghanistan, whatever the wider role—I trust that the planners have allowed for this—is as vital as ever. But other qualities are at least as vital at all levels of command. Diplomatic negotiating skills, humanitarian sensitivity and an instinctive commitment to human rights are essential weapons in the battle for hearts and minds. It must surely be clear to all of us that in the struggles with which we are confronted there is no escape from the reality that they are about a battle for hearts and minds. Peace has to be built: durable peace simply cannot be imposed. That is abundantly clear on every front.
	When things go wrong, when there are abuses, it is not just that they contradict the values for which we so vehemently claim that we are standing—of course, that hugely matters; it is that they play straight into the hands of propagandists for the extremists. To call a spade a spade, such lapses are treacherous. This is the hard-headed truth. The weak and dangerous argument is that which rationalises and endeavours to explain away. To do that is to remove the ground from under the feet of every serviceman and woman who understands the nature of the challenge and who is endeavouring—often in the face of acute and cruel provocation—to meet it.
	It is argued that those we fight do not observe the same standards. That is abundantly and sickeningly obvious. But that is precisely why we have to be consistently, transparently and invariably about something different. To falter is to play for the other side.
	The Bill is about discipline and the administration of justice. I welcome much of it, not least the bringing more closely together on an inter-service basis the systems we have in place. But as we consider it, we shall have to have in mind how far it meets the requirements of transparency, of justice being manifestly seen to be done. It is necessary to weigh all the time the underlying culture and the adequacy of resources both in the judicial arrangements and in the service police. The importance of demonstrable, tough-minded objectivity cannot be over-emphasised.
	I enjoy the writing of Max Hastings. He is one of the more impressive journalists. Would that there were more of them. He makes me think. But I am not always completely convinced by his conclusions. The other day, he was arguing that it is not possible to expect young men and women, who are recruited to fight and to kill, to give priority to hearts and minds concerns. My contention is that if we fail in our recruitment, training and leadership at all levels to prepare our service personnel for the dual tasks—and they must be effective fighters; they cannot just become social workers in uniform—we are contributing to our own ultimate defeat. It is often what ordinary people encounter in the immediate incident which can have a seriously counter-productive—or, indeed, a significant and positive—consequence.
	Leadership, training and ethos are crucial. Systems of judicial administration, however theoretically perfected, are fairly useless without that context. Indeed, they can engender cynicism. We have to be careful lest, in any imposed methodology for what might be called corporate military ethics, we inadvertently undermine the role of leadership. The commanding officer, the NCO who is a living example of the fight for values, is worth any number of lawyers and judges.
	Before I conclude, I should like to refer specifically to Clause 8, which received a certain amount of necessary attention in the other place. I hope my noble friend will be able to convince us that this clause has been drafted with an objective long-term view and not because of the disturbing number of deserters and those going absent without leave in the context of the conflict in Iraq. The penalties are potentially draconian. Life imprisonment is a heavy sentence. Conscientious objection is a precious right which is central to the values we proclaim. We must never jeopardise it.
	In volunteer services, however, people volunteer to serve the nation in whatever way the nation requires. A central question is whether conscientious objection can then apply to a particular situation in which a volunteer is expected to serve. Of course, the principles laid down by the British and Americans in the post-Second World War Nuremburg trials are relevant. A serviceman or woman should be expected to refuse to carry out an order which he or she knows to be illegal. Such refusal should have our complete and unqualified endorsement. When it comes to participating in the occupation of a foreign country or territory, this makes it imperative that such an occupation is authorised under international law.
	The occupation of Iraq was, however reluctantly, post facto authorised by the UN Security Council. But to pretend that an argument does not still exist about the original action and occupation is perverse. I, for one, remain convinced that there should have been an ad hoc specific UN Security Council authorisation—not a subjectively interpreted authorisation cobbled together from past resolutions. This mattered in the cause of the international rule of law, but it also mattered in terms of global political credibility and the battle for hearts and minds. The collapse of the argument put forward in favour of the need for action—the absence of weapons of mass destruction—reinforces the issue. If Clause 8 is to apply, it would surely be appropriate to have explicitly on the face of the Bill a reference to an occupation authorised by the United Nations and under international law. What my noble friend has to say about this in his reply will be very significant.
	I conclude as I started, by taking this opportunity to pay tribute to our services—the men and women and their courageous and anxious families who serve on our behalf.

Lord Mayhew of Twysden: My Lords, of course I follow the noble Lord, Lord Judd, in his concluding words of tribute—and well deserved they are—to the qualities of our fighting services in whom we have such pride.
	By my calculation, the seven gallant and other very senior officers who are due to speak in this debate muster between them some 34 stars. As a fairly humble national serviceman, I feel that the qualities of brevity and diffidence are both prudent and seemly. I shall try to achieve both.
	Along with many others who are better qualified by experience than I am, I think that there is much to be welcomed in this Bill. Focusing as I tried to do on the Bill's legal aspects, I singled out in particular this consequence of integrating the service discipline Acts—namely, that where the three services are in future deployed in a joint operation, personnel serving on a fully joint basis in fully joint units will be subject to the same disciplinary system. That must surely be of immense importance to commanders and to efficiency generally. This merging of the individual service discipline Acts is therefore an extremely valuable reform.
	But as has been pointed out a number of times today—first by the Minister—the Bill comes at a time when what one used to call the military justice system has been under a degree of scrutiny and has attracted a degree of anxiety for which it would be hard to find a precedent. There are a number of reasons for that. For example, there is uncertainty as to what substantive law applies to our soldiers if an operation—in Afghanistan or, indeed, Iraq—should develop from one phase into another phase. Can an international conflict situation develop out of an operation intended originally to assist reconstruction of the civilian population and the civilian arrangements? That can be said to happen if such an operation sustains serious armed opposition. It is important for those taking part to know whether that transition has occurred or not, because very different rules apply as to what soldiers may do.
	Questions of this character can be expected to arise with increasing frequency with the new pattern of deployments that seems to be emerging and, indeed, has been emerging for some time. They add to the difficulties and dangers that our troops face, and they surely emphasise the critical importance to them of having confidence in the legality of what they are required to do and, further, in the fairness of the disciplinary processes and structures within which they work. I welcomed the Minister saying earlier this afternoon that fairness was the key consideration. He said that, above all, the military justice system must be fair. I believe that it is that concept of fairness that resounds most in the minds of our military in this context. People know that they have to work within the law; they ask only, as they are entitled to do, that the law be made reliably clear to them by those who deploy them and that its disciplinary enforcement take full and fair account of the stresses and dangers that they face.
	I now turn to the Bill. It cannot of course be expected to deal with the substantive law applying to specific operations, but it does deal with the processes by which disciplinary justice is delivered. In the context of confidence in the fairness of prosecuting decisions, I found it curious, not to say dismaying, that the new Director of Service Prosecutions is not required by the Bill to be a serving officer. Clause 358 sets out the requirements for this particular office, which all relate to legal qualifications of one kind or another. Why has this departure from each of the individual service disciplinary Acts been made? The Minister may reassure us, or seek to do so, by saying that it is the intention of the Government that in practice the Director of Service Prosecutions will always be a serving officer. If that is the case, why can it not be specified as necessary in the Bill?
	If that were indeed the intention of Ministers, we should welcome it. But it is worth exploring why it would be valuable. It would be valuable because it would be seen to be some safeguard against prosecuting decisions being taken in ignorance of the character and influence of the operational stress that the soldier cannot avoid. The noble and gallant Lord, Lord Bramall, has touched on this already, with a wealth of personal experience.
	It would be good for justice and for confidence in justice if the new director had to be a serving officer. That would at any rate give him access—although inevitably at second hand, one imagines—to information about and an understanding of operational stress. Of course it would be better if he had recently had personal operational experience, but I suspect that that is too difficult in modern conditions. It is reassuring to learn, as I did yesterday, that every young officer in the Army Legal Services typically serves a six-month secondment as a platoon commander or equivalent in an infantry battalion.
	The failure to require the Director of Service Prosecutions to be a serving officer has not, I guess, passed unnoticed. I would be surprised if it were not seen as being of a piece with what is seen, for example, as the increasing practice of employing civilian counsel to prosecute in courts martial. They will only very rarely, and coincidentally, have any service experience these days. There is in some quarters perceived to be a civilianisation of the military justice system, which occasions well placed anxiety.
	This departure from the pattern of the individual service discipline Acts in not requiring the director to be a serving officer is alarming, not least because it will inevitably be seen in the context of the notorious case of Trooper Williams, which, thanks to my noble friend Lord Campbell of Alloway, your Lordships' House has valuably examined and which has already been referred to this afternoon. It is worth reminding your Lordships that in that case, the commanding officer, acting entirely within his legal powers, now to be taken away by the Bill, and on legal advice obtained in theatre, got it absolutely right in dismissing the proposed case on the grounds that, in the operational circumstances prevailing at the time, there was not enough evidence to warrant a prosecution. Nearly two years later, this belatedly became the view of the Director of Public Prosecutions, to whose civilian service the case had been very dubiously referred, and the case was dropped virtually at the door of the court.
	On the co-existence of the parallel civilian jurisdiction and the military, amendments that my noble friend Lord Campbell of Alloway will table will give us most valuable insights into the possible role of the High Court in making a referral instead of the Attorney-General. I think that there will be plenty of room for valuable debate there.
	I have thought it very regrettable that the Government have removed the jurisdiction of the commanding officer in this context, which was so correctly exercised in the case of Trooper Williams and which I believe has been of long standing. If it has been of long standing, it is rather interesting to reflect on why that is the case—I have not been able to look it up—and on what was said in its favour in the first place. There have been plenty of opportunities to get rid of it before now.
	It is important to have an idea about why this has happened. I listened with care to what the Minister said; I listened with no less care to the noble and gallant Lord, Lord Bramall, when he said that he would not have too much difficulty in accepting the removal of the jurisdiction. It is important to know whether it is being done in deference to Strasbourg and the ECHR. Does it derive from some specific judgment? Can we be assured that this is not another example of gold-plating? After all, this jurisdiction had co-existed with our obligations under the ECHR for some 50 years before Trooper Williams's case.
	I will want to look carefully at what the Minister has said, but I note with a little scepticism the assertion that the commanding officers do not want the jurisdiction. Of course I have great respect for what General Sir Mike Jackson has evidently said, but I doubt whether it is true that Trooper Williams's commanding officer, his successor or his contemporaries do not want that jurisdiction. That power is of course reviewable judicially if it is exercised irrationally or unlawfully. I would be perfectly prepared to see the Attorney-General, who has a corrective overall supervisory role, being allowed to appeal against this exercise, but there is plenty here to be looking at. I do not give up my initial and instinctive reaction of regret that this power is being taken away.
	The noble and gallant Lord, Lord Bramall, asserted that military justice cannot be exercised in a vacuum. I respectfully agree and with that in mind expect that we will take up some time in what will be a productive Committee stage.

Lord Roper: My Lords, like the noble and learned Lord, Lord Mayhew, I do not have the same first-hand experience of service discipline as many of the noble and gallant Lords taking part in this debate. It is 50 years since I completed my national service in the Navy. My excuse for taking part is that, more recently, 30 years ago when serving in another place, I served on the Select Committee considering the Armed Forces Bill of 1976; and the very special procedure that the other place uses for considering these quinquennial Bills is a useful introduction and education to the range of issues of service discipline that we are considering here today. Indeed, five years ago in this House, when we were considering the previous Armed Forces Bill, I timorously suggested that there might be value in there being a Joint Select Committee of the two Houses to carry out the pre-legislative scrutiny of these quinquennial Bills.
	I have read with considerable interest and benefit the report of the Select Committee in another place and in particular the evidence of the noble and gallant Lord, Lord Boyce. He said that there should be a tri-service Act which maintains options for "tolerable variation". That is a rather satisfactory outcome of this legislation. Indeed, I will have to think hard about the points made by my noble friend Lord Thomas of Gresford on the composition of courts martial, because that is one of the tolerable options and variations. Probably in normal cases the majority of the members of a court martial would come from the service of the individual whose case was being considered. We will need to come back to that point. Perhaps there are arguments in favour of my noble friend's point of view.
	The other point about the Bill is that it is an enormous operation transforming the structure of service discipline. It is an enormous tribute that we have the Bill. Will the Minister say how long it will take us to introduce it? It is a large and complex operation and, as has been suggested, it will be necessary for people to get to know something about the new procedures. These things cannot necessarily be carried out overnight.
	When we go through the Bill we see that a great deal of it depends on regulations. The Minister himself made a point about Clause 127(2)(e), which is a complex matter that will be determined by the regulations. I wonder how far we will be likely to be able to see or draft the regulations when we come to consider the Bill in detail in Committee, because it seems that a number of the points, and points of substance, including the issue of the roles and definition of commanding officers are matters to be prescribed. It would be useful if we could see those before we come to make our final conclusions.
	One thing that I am particularly pleased about is the fact that the Government changed their mind in the Commons about annual renewal of the Armed Forces Act. The Act is to be renewed by order every year, maintaining a very long-standing historical principle whereby the Armed Forces are authorised once a year by both Houses of Parliament. The lapse of that provision, as was originally proposed and was strongly argued against in the Select Committee, would have been a mistake.
	Only yesterday, we saw in the Government's response to the Deepcut review how far they have moved in developing a commissioner of military complaints. It will be necessary to examine in some detail the specific amendments that the Government table on this point to discover whether there has been a significant change in response to Nicholas Blake's report, or to what extent this is little more than a cosmetic change. We shall need to give a good deal of consideration to that.
	From what has been said so far, and what I suspect will be said in later contributions, there will be plenty of opportunity for detailed consideration of this Bill in the Committee of the whole House to which it is to be committed later this evening. But I join others in welcoming an important step forward in developing a framework for military discipline and, like others, pay tribute to those who are going to be subject to it—our very gallant servicemen of all three services.

Lord Ramsbotham: My Lords, I thank the noble Lord, Lord Drayson, for the considerable efforts that he has gone to in the past weeks to brief my ex-military colleagues and I on the progress of this Bill. We have appreciated greatly the trouble that he has taken. Like many other noble Lords, we are generally very satisfied with the great majority of this Bill. However, I am extremely glad that the noble Lord, Lord Drayson, mentioned his concern about delay, because that must impact on everything to do with military discipline.
	I am conscious that when one is talking about a military matter at the moment, one has to be aware of three factors affecting the selection of the aim, as it were, if you are looking at it in a military context. First, there is a tendency to think that the retired military officers represent the "old and bold" and the reactionary, as opposed to the modern people who are facing completely different challenges. That is not wholly true, because the challenges basically boil down to persuading people to do what they do not necessarily want to do on behalf of the country. Secondly, there is the danger of extrapolating emotion out of highly publicised events, such as Deepcut, the Trooper Williams trial, the 3 Para court martial and the case of the guardsmen, as well as the forthcoming matter of the Queen's Lancashire Regiment, as opposed to focusing on the needs and everyday requirements, many of which will not be discussed in emotive circumstances. However, I have to say that many members of the Armed Forces will be looking with great interest to see what action is taken against the policemen involved in the shooting in Stockwell, having observed what happens to soldiers who open fire in Iraq.
	Finally, we are very conscious that fewer and fewer people actually understand why the Armed Forces need a separate military discipline code. That was extremely well summed up by the Judge Advocate General, Judge Blackett, in his evidence to the House of Commons Select Committee. He said:
	"There are cogent reasons for maintaining a unique system of military justice, separate and distinct from the civilian system. These are to . . . support operational effectiveness and morale . . . maintain discipline which is an essential element of command . . . reflect the special and unique nature of the Armed Forces, in which sailors, soldiers and airmen are required to use lethal force to support Government policy, to risk their personal safety, and to be prepared to lay down their lives for their country, and . . . extend the law of England and Wales to personnel serving overseas and outside the jurisdiction of the civilian courts".
	Armed with that when I look at this Bill, I join with the comments of my noble and gallant friend Lord Bramall and the noble and learned Lord, Lord Mayhew. There are two aspects of particular concern. First, there is the maintenance of the position of the commanding officer and, secondly, there is our concern about the military experience and expertise of those who are to act in the prosecuting authority in various positions. A point that has already been raised by my noble and gallant friend Lord Bramall concerns commanding officers' involvement, once a case is taken out of their jurisdiction by the service police and the prosecuting authorities. The requirement that the commanding officer must be kept informed of what is going on should be accompanied by the enablement of the commanding officer to make representations to those people involved at the time to ensure that all the military factors, or any factors that they may need to know, are actually there. This is not contained in the Bill, and it should be teased out during Committee.
	As the noble and learned Lord, Lord Mayhew, said, it is very difficult to be precise about what you mean by "military experience" in terms of the Director of the Service Prosecutions. Could he have been a platoon commander in an infantry battalion? Could he already have served as a prosecuting authority in a junior capacity? We need to be more specific than merely listing the legal qualities required, because he may have to make military judgments on cases that come to court.
	One or two other things concern me about the Bill in its present state, relating to the fact that a number of other issues were not satisfactorily discussed in the other place before they came to your Lordships' House. For example, Clause 154, on single service panels, has already been mentioned. This is a tri-service Bill, which is fine; there will be many occasions when you need tri-service justice because you have all three services together. But for the vast majority of the day, individual servicemen and servicewomen will serve in their own service and that is all that they will see. Therefore, it is very important to ensure that single service justice panels are continued.
	I know that a very large number of amendments will be tabled to the Bill, and here I thank the noble Lord, Lord Astor of Hever, for the enormous effort that he and his research staff are putting into this, which he has been sharing with my noble colleagues. When the Minister looks at the speeches and suspects that there may have been collusion between the 34 stars mentioned by the noble and learned Lord, Lord Mayhew, he is absolutely correct—and I assure him that that collusion will continue.
	I have three particular concerns. First, the House of Commons Select Committee report on the Armed Forces Bill mentioned one particular concern that it expressed to the MoD. It says:
	"We expressed our concern to MoD that we had not been provided with more detail of the proposals likely to be in secondary legislation, without which we have not had a complete picture of the legislation's proposals. We understand that MoD intends to produce more details before the conclusion of proceedings on the Bill in the House of Commons . . . We urge the Government to provide more detail on the proposals that will be included in subordinate legislation and how they will work before the House of Commons completes its consideration of the Bill".
	That point has already been made to the Minister in the deliberations that I mentioned earlier, but it is enormously important that some of the things stated in the Bill more as a generality are spelt out in detail, particularly for the future, because the detail may be lost. For example, it needs to be spelt out that the commanding officer may make recommendations during the process rather than treating it as a matter of, "Someone said some time that it could be". That is important.
	Secondly, it has been quite clear that the image of the military has been taking something of a bashing in the media, particularly over high-profile cases. I am extremely glad that the noble Lord, Lord Astor, mentioned the resurrection—or the hoped-for resurrection—of the post of director of public relations for the individual services. I have to declare an interest in this because I was the Army's director of public relations during the Falklands War, so I know something about what is involved. However, the job of government information service people is connected more with Ministers. By removing the service directors of public relations, you remove people who are involved with the protection and the projection of the image of the Armed Forces. If I were director of public relations now, I should have already been preparing how I was going to limit the damage that will be caused when the Queen's Lancashire Regiment commanding officer is arraigned in September, for example. Some of the recent problems in Iraq, I believe, could have been better explained if someone in uniform was responsible for discussing the issue with the media, and then no more will this be involved with the legal cases that I think will come before us.
	Finally, I hope that when timings are prepared for the progress of the Bill, there will be sufficient time in Committee to cover all the amendments that come out, rather than just sending something incomplete back merely because we have run out of time.

Lord Guthrie of Craigiebank: My Lords, in general I welcome the Bill. I thank the Minister and his team for the trouble they have taken in briefing us on the progress of the Bill. Thank you very much indeed.
	This Second Reading is happening at a very difficult time for our services. They are involved in operations in Iraq which for many people in our country, perhaps the majority in our country, are unpopular. For the first time in my own experience the services do not have overwhelming backing for what they are doing, although the country is still supportive of the services themselves. The new commitment to Afghanistan will, I think, pose further difficulties, may continue for a very long time and could become as worrying as Iraq. I do not think that we can guarantee to have support if the operations appear to be going wrong. I think that the services know that and are very concerned.
	Our services need a discipline Act that they can believe in, one which reflects just how difficult it is to take part in military operations and the challenges that the services face. The structures they need are in many ways different from those in civilian life. What they need must be understood. I am still not sure if many in the Government, in Parliament and the legal profession begin to understand that, despite their assurances that they do. There seems to be less understanding than there has been for many years. There is still a feeling in some circles that service law should be the same as civil law. That cannot be right if we are to have effective fighting forces. I think it illustrates the lack of understanding that I am talking about.
	The bond between the commanding officer and his or her unit is of great importance. I was very relieved to hear what the Minister had to say about the service police and the commanding officers. I and others did not interpret what is currently written in the Bill as quite saying that. We were concerned. I hope it will be absolutely clear when it is looked at again.
	I can well understand why a single Act, as opposed to separate service Acts, brings benefits. It is much more convenient to have one Act. However, we would be very wrong to forget and not to recognise why we have had three different Acts. We should be very careful. I agree entirely with what the noble and gallant Lord, Lord Bramall, said on this subject. The Acts reflected the nature of the services, the different environments they fight in and the way they go to war. There are many differences. For example, in the Royal Navy the captain of a ship is the man who decides whether to go into action or avoid action. The ordinary seaman has little choice; once the captain has decided which course to sail on, he cannot run away. In the Royal Navy, only a minority of officers and crewmen close with the enemy and have to place themselves in mortal danger. The Army is different and, I think, is rather more complicated. A far higher percentage of officers and men go into battle and have the opportunity to run away. It is important that, when and where necessary, services are different. That needs to be recognised. For example, the composition of the courts-martial boards is highly relevant.
	The services need to have confidence, as other noble Lords have said, in the Director of Service Prosecutions. I entirely agree with what the noble Lord, Lord Astor, said. It is difficult to define "military experience" but it is surely much more than just having a senior military rank. Having a civilian in this important role would be quite wrong and damaging.
	Lastly, over the past few years we have been in danger of our services becoming risk averse. The noble Lord, Lord Astor, referred to a recent survey. We must be very careful that servicemen do not become frightened to take the necessary actions on the battlefield. We know that some soldiers have been nervous to squeeze the trigger when they needed to. The Act must continue to recognise that it has great responsibilities for operational effectiveness. I think that much work needs still to be done in Committee to reassure the services. As the Minister, the noble Lord, Lord Thomas, and others have said, the services need complete clarity on what the law is.

Baroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the opportunity to discuss this long-awaited Bill. I would also like to thank the Minister, his predecessor, my noble friend Lord Bach—who was in his place a short while ago—and the MoD Bill team, headed by Mrs Teresa Jones, for their valiant efforts over the past two years in trying to keep noble Lords up to date with the various debates on and guises of the Bill.
	The Bill's overall intentions are to be welcomed and many noble Lords have already done so. It is 50 years since the discipline Acts of the three services were implemented in the 1950s. Since that time, society has changed beyond recognition in so many different ways. The Armed Forces themselves have changed. There is much more bi-service and tri-service co-operation and operations today. A disciplinary Act is needed that covers all three services while at the same time recognising the unique culture in each of the three services—or, as the noble and gallant Lord, Lord Boyce, discreetly said before the Select Committee, the tolerable variations between each service.
	The Bill was referred to the Select Committee in another place and that committee's considerations were in public. I welcome both those aspects, which have certainly been helpful in understanding this wide-ranging Bill. The rigour of the committee's considerations has helped a number of us when reading the reports and the evidence given to the committee. The Armed Forces are distinct from other parts of society. The work and the commitment that our forces pledge to the nation—sometimes people have to give their very lives—make it paramount that there is a separate system of service law and discipline to that for civilian folk. That is the basis on which I approach this really quite complex Bill.
	I wish to address some key parts of the Bill. Chapter 3 covers desertion, which has been referred to by my noble friend Lord Judd but no one else. The clauses are a considerable improvement on what we have at the moment, and I welcome those improvements, but that is not surprising, since the disciplinary Acts written 50 years ago were bound to be very different from what we would expect today. However, I need convincing that a maximum of a life sentence is necessary for desertion. I do not agree with my noble friend Lord Judd that we would invite people into the services and then go around encouraging them to be conscientious objectors, which is the complete opposite of the intention. However, I need convincing that a maximum of a life sentence is necessary for desertion.
	Appreciating and understanding the military context is essential to the administration of a fair justice system in the Armed Forces, and key to that is the commanding officer. Clauses 52 to 54 relate to the role of the commanding officer, which has been referred to already in the debate. I understand the logic in the Bill, and I understand the evidence that was presented in another place. I also understand that it was accepted that the commanding officer will be kept "in the loop". I am not too sure what that means in a disciplinary context.
	There is a reference in Clause 127 to giving power to "prescribed persons" to be notified of "prescribed matters". The Minister referred to that in his opening remarks. Will he confirm that the words proposed in regard to the commanding officer being "in the loop", so to speak, will be in the Bill? If they are there, as I hope they will be, just what involvement will the commanding officer have? If the words are not in the Bill, will they come forward in secondary legislation during the passage of the Bill through this House, so that we have an opportunity to consider them?
	Chapter 2 deals with time limits. If there is one area where this Bill could help, it would be to shorten the time that the process of the system of discipline takes—the whole process, not just getting to the point of charging. As we have seen in all too recent cases, quite often it is the time that the process takes that causes the stress that has such a damaging impact on the service personnel concerned, their families and sometimes the wider morale of their colleagues in their unit back at base. I welcome Chapter 3, which covers double jeopardy. Trooper Williams is the often quoted example, but this is not legislating for a one-off situation; that would be bad legislation. Other parts of the Bill will help, but this chapter is very important.
	In Part 18, Clause 358 is one of the most critical parts of the Bill. It provides for the position of a Director of Service Prosecutions, but it does not provide that the person appointed must be either a serving officer or have military experience. I have read with interest the evidence given to the Select Committee in another place, and I have followed the various briefings from the MoD. I understand the difficulties about getting the right wording in the Bill, and I agree that the core must be that the best person for the job should be appointed. But, with my limited experience with the Armed Forces, I cannot believe that it is not possible to guarantee that the Director of Service Prosecutions has both legal and military experience. In fact, I think that that is essential, not least because we are talking about the confidence of service personnel in the process and in the people involved in it who are meting out the decisions affecting their lives. The Minister may, I believe, recognise that there is an issue here, and I ask that in winding up he will give an indication of how he intends to address this in Committee.
	All Bills have secondary legislation, and this one perhaps more than most. Mr Humphrey Morrison, director of legal services at the MoD, in describing the scale of the task of drawing up the statutory instruments relating to this Bill, said:
	"It is a big project".
	That is perhaps one of the best understatements that I have heard in a long time. As I am sure the Minister recognises, it is important that the various pieces of secondary legislation relating to this Bill come before us as the Bill progresses through this House. It is important that the Bill does not leave this House without the principal components that will be covered in secondary legislation being put before us for consideration and discussion.
	There is much to welcome in this Bill. Much of it will give support both to operational effectiveness and to the confidence of personnel in the system. But some of the changes that are needed—which have been highlighted in this debate and are derived from the work of the Select Committee—will in the end, of themselves, determine just how successful the Bill will be in meeting what is expected of it.

Lord Campbell of Alloway: My Lords, at the outset, I thank the Minister for the rather exceptional treatment that we have had in being able to discuss with an open mind how we could improve this Bill. That is greatly appreciated.
	I am concerned about whether some form of statutory safeguard is now requisite, as has been spoken to on so many occasions between 14 July 2005 and 16 February 2006 when this was discussed. Is it requisite to do something to avoid repetition of what happened not only to Trooper Williams but to Sergeant Roberts, after years of delay? I am very grateful to the noble Lord for the proposal to end delay and to my noble friend Lord Astor of Hever for trying to fit in another safeguard to avoid delay. Even with that, there still arises the question of what happens after a period of delay when you find that there is no quality of evidence to support the charge. Even if you reduce the delay, the situation for the member of the Armed Forces involved, on a charge where there is no quality of evidence, must be looked at with some care.
	In this context, the Bill makes no provision to inhibit resort to the process under which trials of cases in the civil courts is ordained by the Attorney-General, whether or not at the behest of the Director of Army Legal Services or what will become the DSP, for offences that otherwise could be dealt with at courts martial. Such ordnance is made ex cathedra, within the closet of absolute discretion, not subject to review by the judiciary, without notice, reasons or any means of objection. That is in defiance of the fundamental principles of justice. It remains a matter of current concern for the Armed Forces that now must be addressed, not only in the interests of justice, but under the new concept that justice has to reflect the provisions of the Human Rights Act. The purpose of my speech is merely to put down a marker for a probing amendment.
	There is no need to deal with detail at Second Reading, but it is proposed to require the Attorney-General to apply to the High Court if he wishes to resort to the civil jurisdiction for the three serious offences of murder, manslaughter and breach of convention. The High Court would then adjudge whether that would be in the public interest. No one seems to imagine the truth, which is that you should transfer jurisdiction only in the public interest. I suggest that that is a matter not for the Attorney-General but for the court—totally objectively—to decide, as it should decide whether there is the quality of evidence to warrant a trial.
	In other, non-serious cases, the Attorney-General can make any dispensations or decisions, subject to the one qualification introduced by the noble and learned Lord, Lord Mackay of Clashfern, who said that there must be always some means of objection. In such cases, it is suggested that the qualification introduced by the noble and learned Lord should be met by regulations made under Clause 127(1). So although there is disparity of treatment, in all cases of a transfer from the court martial jurisdiction to the civil jurisdiction a reasoned decision has to be made. That is common to both categories. In the serious category, that decision must be made by the High Court. In the other category, the decision has to be made giving reasons—a totally unreasonable decision would be set aside on judicial review. So, there is a structure.
	This matter is approached on the basis that, as the noble and gallant Lord, Lord Bramall, has said on more than one occasion, in particular on 16 February, an armed serviceman's legitimate expectation is that he should be tried for these serious offences by a court martial, if the offence is committed in operational circumstances. That would mean that some of the people who sit in judgment have experience of lethal situations in which mistakes are apt to be made, because the rules of engagement are not readily understood and are sometimes not understandable. Specific orders on such urgent rescue missions as to free hostages and to avoid torture and death—for example, the operations in Sierra Leone and Basra—have to be regarded in a different light from murder in the streets of Manchester. Such matters have to be assessed by someone who has practical experience and knowledge of the situations that arise—and that will be incorporated into the amendment.
	I am anxious not to detain your Lordships a minute longer than I need to, because I have given you the broad structure of the amendment that I propose to table and, with the leave of the House, I will deal with the details on a subsequent occasion.

Lord Vincent of Coleshill: My Lords, as I have said before in this Chamber, I accept without reservation the need for members of the Armed Forces to live and work within a relevant legal framework. For those who may have breached such laws, I recognise that there have to be appropriate and effective procedures for dealing with such cases.
	I also have no difficulty in principle with bringing such arrangements together under a single Armed Forces Bill, so long as it also addresses the specific and necessary needs of the individual services, which have been mentioned by a number of noble Lords. But those responsible for defining such a legal framework for our Armed Forces and those who may subsequently be involved in dealing with alleged breaches under the new processes defined in the Bill need to have a clear understanding and personal awareness of the uniquely demanding nature of service life.
	Members of our Armed Forces must automatically accept their commitment to combat or other operations, often at very short notice, without choice or consultation, thereby putting themselves in harm's way and, if needed and authorised under the their rules of engagement, taking lethal action themselves. In many cases today, as we can clearly see on the ground in Iraq and Afghanistan, those demands are made not just on commanders in the field, but on the most junior ranks, often in highly lawless societies, where their potential adversaries, whoever they might be, often operate totally unconstrained by any legal niceties or human rights considerations.
	So, from my perspective, combat operations have no equivalent in any other profession, while today an ever smaller proportion of our population at large, including Members of the other place and Her Majesty's Government, have any first hand experience of such operations. In a wider sense, that is greatly to be welcomed, because it is a clear indication of the overall effectiveness of our security and defence policies over the past 40 years since National Service conscription was phased out in the early 1960s and has not been needed since that time.
	One less obvious effect is that many of those seeking to introduce this new legislation—including arrangements for dealing with alleged breaches by the Armed Forces on operations—have no first-hand experience of such a uniquely demanding environment. This caused such concern both in the Armed Forces and more widely among the public when, for example, serious charges were laid and men brought to trial after unacceptably long delays of three years or more, but the charges were then dismissed or the men found not guilty. I therefore welcome the Minister's acknowledgement of the adverse consequences of such delays and the proposed amendment for addressing this matter referred to by the noble Lord, Lord Astor of Hever.
	This also bears directly on some other aspects of the Armed Forces Bill as currently drafted. For example, who is to appoint the independent Director of Service Prosecutions and how will he be selected for such a post? What direct experience of combat operations will he have had to inform his judgment on the prosecution of specific cases? Furthermore, such cases, when they are referred to the Service Prosecuting Authority or the Crown Prosecution Service, may have had their origins in highly lawless and violent environments, where normal forensic investigations cannot possibly be conducted as they are in civil cases, despite the best endeavours of the Royal Military Police. In such demanding cases, how is the performance of the Director of Service Prosecutions and, where engaged, the Crown Prosecution Service to be assessed and by whom? For example, would a series of failed prosecutions, after an inordinate delay before trial, have a bearing on the career progression of those individuals concerned, as it surely must on the lives of our servicemen and their families who have gone through this harrowing process?
	Finally, in the light of the comments of the noble Lord, Lord Judd, how are the government Ministers involved in the commitment of our Armed Forces to military operations to be accountable for their actions? Personally, I accepted the case for the deployment of our Armed Forces on operations in Iraq over three years ago on the basis that there was apparently clear evidence of illegal and threatening weapons of mass destruction and that UN Security Council Resolution 1441, which was already in place as a last-chance warning to Saddam Hussein, provided an adequate legal basis for such an operation. We quickly learnt that no such specific threat existed. Who in Her Majesty's Government at that time was responsible for developing and delivering the longer-term, wider strategy for Iraq, in concert with the United States, including timely and effective arrangements for its reconstruction after the war-fighting phase had been concluded? The evidence now suggests that no such timely and credible plans were prepared, despite a number of questions in this House at the time, hence the continuing mayhem and bloodshed in parts of Iraq, which still threaten the lives of our Armed Forces and others today.
	This, in turn, relates to the question of war-making powers, currently being reviewed by the Constitution Committee in this House. In the light of this Bill, that committee might wish to consider the relative responsibilities and accountability of those formally committing us to military operations and those members of our Armed Forces who then have to undertake them. I should emphasise that I raise the matter not as a criticism of past events, but because under this Bill, as I understand it, the Attorney-General, who would normally advise the Government on the legal justification for a possible military operation, would also have responsibility for the superintendence of the new Director of Service Prosecutions.
	Given the apparent discrepancies in the Government's accountability for such operations and the overlong delays in bringing military cases to trial, we would be wise to look very closely at some of the details to which I have referred in the Armed Forces Bill before us, including the appointment and role of the Director of Service Prosecutions and to whom he should be accountable for his performance. If none of those concerned has ever themselves been subject to the reality of combat operations, how can they then make an informed and balanced judgment on such matters.

Lord Inge: My Lords, like other noble Lords I would like to thank the Minister for keeping us well informed about the progress of this legislation.
	A cursory glance at recent headlines and newspapers—following the dismissal of the case against the three guardsmen, who were cleared of manslaughter of an Iraqi looter, and Deepcut—make it clear that the military justice system is under a spotlight that is totally unique in my experience. This is unsettling for the Armed Forces at a time when they are heavily engaged in demanding operations in Iraq and Afghanistan.
	There is unease among the services about what all of this really means. Are the services going to have a legal system, or a system of justice, that they can trust and which represents the realities of—I stress this—operational service in places such as Iraq and Afghanistan? More than ever I wonder how many people really understand the huge demands that we place on our servicemen when they are on operations. Instead, it was clear from a study conducted by the Adjutant-General's department, that there was confusion and hesitation about opening fire for fear of prosecution. I am told that this has all been sorted out, but I still wonder. It is certainly a clear illustration of the concern felt by people who are risking their lives on the nation's behalf. To me this means that we have a huge responsibility to ensure that the changes to military law recognise not only the realities of operational service but also that in certain instances the three services are very different—they are difficult too—and the critical importance of the military chain of command, particularly the commanding officer, in administering the military justice system.
	First is the hugely important role of the commanding officer, as I have just said. His role is essential in the chain of command. We have had verbal reassurances that this is recognised and that his role will be protected, but we will need to examine in detail in Committee that that is right. Certainly, as the noble and learned Lord, Lord Mayhew, has pointed out, he will have no part to play in certain cases where serious offences have been committed—I wonder about the Trooper Williams case. There, the commanding officer having dismissed the case, his judgment was overruled by the Army Prosecuting Authority, but two years later—I stress this—the commanding officer was vindicated in his judgment. I will certainly want to probe closely how we handle cases of this nature. Also, as many other noble Lords have mentioned, the selection of the director of the Service Prosecuting Authority is going to be hugely important. It must be someone who has not only the confidence of the services and the chain of command, but also the agreement, I hope, of the three service chiefs and the Chief of the Defence Staff.
	Going back to the role of the Director of Service Prosecutions, it is enormously important that the commanding officer, having had advice from the Director of Service Prosecutions, is the one who remands the soldier or serviceman for court martial, if the evidence warrants it.
	In addition, during that investigation it is enormously important that the commanding officer is kept informed of progress by the service police and that, before the soldier or serviceman is formally charged, the commanding officer has the right—I emphasise, the right—to comment on the charge. That reinforces yet again the huge importance of the Director of Service Prosecutions having a real understanding of the demands of operational service. Whether it would be possible for the holder of that post to be a serving soldier, sailor or airman, I simply do not know, but he or she must have the confidence of the service commanders.
	I should tell noble Lords that I am trying to cut out parts of my speech, as much of what I intended to say has been said by others. But perhaps I may touch on the subject of the membership of courts martial. I am afraid I do not agree with those who have said that it should be a tri-service tribunal. It is enormously important that the membership of a court martial board represents the service of the serviceman being tried.
	I return to the issue of the commanding officer. We need to recognise the huge importance, particularly on operational service, of a regiment having faith in its commanding officer. I recognise that there are good and bad commanding officers, but I am absolutely clear that there are many more good ones than bad ones. Not only the Armed Forces but the nation have a duty of care and responsibility for our servicemen and servicewomen when they ask them to risk their lives on the nation's behalf. A key figure in that responsibility is the commanding officer.
	My next point concerns the review of court martial proceedings—something that we have not touched on this afternoon. In the past, the chain of command had a responsibility to review, and comment on, the findings of a court martial. That was a very important part of the responsibilities of the chain of command, but I understand that it may no longer be the case. Certainly from my initial MoD briefing, I gained the impression that the services were content with that, but I now find that the Army wishes to keep the review process. I feel that, as the Army is far more likely to have to close with the enemy in close combat, we need to be sure that the interests of its soldiers are properly looked after. Again, this is something that I shall want to look at in Committee. Certainly I would like to know why it is felt necessary for the findings of a court martial to bypass the chain of command.
	Finally, I make the point that the timescale for the introduction of this new legislation is very tight. It will be hugely important to ensure that not only is it explained carefully to people right down the chain of command but that those involved understand what they have to do and the timescale in which they have to do it.

Lord Dubs: My Lords, the noble and gallant Lord, Lord Inge, referred to the military justice system as being under a spotlight, and I think that he is right. I wish to refer to an aspect of the military justice system that is not contemporary but goes back some 90 years. I refer to the 306 soldiers in our Army who were shot for cowardice, desertion or mutiny in the Great War between 1914 and 1918, some 26 of whom were Irish. I understand that the 90th anniversary of the battle of the Somme will be in a few weeks' time, and therefore it is absolutely right that we should consider this issue, which is not new. I believe that those soldiers should now be pardoned for the sake of their families and for the good name of our Armed Forces.
	I appreciate that, after so many years, we do not have full records of the courts martial. However, it is clear that the trials were short. Sometimes they lasted for as little as 20 minutes and sometimes as long as an hour. Often the soldiers who were charged did not have anyone to defend them. They were frequently shell-shocked and needed medical or psychiatric help, not accusations of cowardice. Some of them were very young. Indeed, they had lied about their ages in order to be admitted to our Armed Forces so that they could fight for their country. They were far too young even to be considered for execution. It is clear that today the majority would not even have been charged but would have been given help.
	I appreciate that no one is happy about this situation, and I hope that my noble friend will accept that justice needs to be done. I am sure that the whole House will see it in that way. The question is: how can we achieve that justice? Of course, there are difficulties but I think that it can be done. A pardon is absolutely the right answer. New Zealand saw it as being so—it pardoned its executed soldiers some years ago. I understand that Canada found a way of giving an apology to its executed soldiers, but I think that the New Zealand model is more appropriate.
	I also understand that the late King George V gave pardons to certain senior officers. Certainly there are records of some officers being pardoned, and others were properly diagnosed as suffering from shell shock and a breakdown of the central nervous system. We have all read of those who were referred to Craiglockhart War Hospital and nursed back to health. Some eminent names from our literary history were there: Wilfred Owen, Siegfried Sassoon and Robert Graves. Possibly officers were treated better, and there is also a suggestion that some Irish soldiers were treated worse. But that is not my point. I believe that all those who were victims should be viewed in the same way as having the right to a pardon.
	I am not criticising the officers who sat on the courts martial. I am sure they were often desperately unhappy about what they were doing but they had to do it. We know that times were different then. We know that attitudes were different and that many of the sentences were given out in difficult circumstances near the battlefields and had to be carried out almost immediately.
	I do not want to take up the time of the House for more than for a moment or two. I simply want to say that I have an amendment on this issue ready for the Committee stage. It was passed to me by Andrew Mackinlay MP, who has worked very hard on the issue for a number of years. Unfortunately, when he tried to raise it in the other place, there was no time to start debating the amendment, but I believe that we shall be able to do so here.
	On a more optimistic note, I hope that the Government will make it unnecessary for me to move the amendment. Perhaps my noble friend will be able to give me an assurance that pardons will be granted without my having to subject the House to yet another amendment to the Bill.
	Surely the families of those who were executed—wrongly, in my opinion—have the right to see pardons being given to their beloved ones from a generation or two ago. The executed soldiers deserve better treatment than to be remembered as cowards; instead, they should be remembered as brave men who were willing to fight for their country in difficult conditions. Lastly, surely members of today's Armed Forces have the right to serve in conditions where some of their predecessors who served their country are not unfairly tainted.

Earl Attlee: My Lords, I am grateful for the Minister's detailed introduction of the Bill. I remind the House that, as we speak, I am a serving officer in the TA and am subject to the service discipline Act. I have been subject to summary jurisdiction myself. I lost a camp bed, and a squadron sergeant-major who was responsible for that 30 years ago is one of my best friends. I have also had to exercise summary jurisdiction, and I have served on some minor courts martial.
	We on these Benches have been asking for a single-service discipline Act for many years. I cannot recall serving on a recent exercise or operation when members of other services were not serving alongside me. At this stage, there is not much new for me to say, but I have a few observations.
	The noble Lord, Thomas of Gresford, queried single-service courts martial. I rather share the view of the noble and gallant Lord, Lord Inge, so I am not sure that I am with the noble Lord on that. However, I am much more interested in his comments about majorities on courts martial. My noble and learned friend Lord Mayhew talked about how little evidence there was in the Williams case. My understanding is that there was rather too much evidence. Apparently, the corporal in the Royal Military Police made three different statements, and I am confident that the noble Lord, Lord Thomas of Gresford, would lick his lips at the prospect of cross-examining the corporal in order to determine which statement the court martial was to believe. Clearly, legal advice received by the commanding officer was absolutely right in the first place, perhaps even if the last statement was accurate.
	The noble Baroness, Lady Dean, was quite right to caution your Lordships about using the Trooper Williams case to measure the Bill against. If matters go so wrong, however, it is not surprising if there is significant parliamentary activity, much of it directed at the noble and learned Lord the Attorney-General.
	Many noble Lords have talked about delay, and I agree with everything that has been said. I certainly look forward to pursuing the amendments about time limits. Not only would they be fairer to the suspects, they would also be fairer to the victims. A short flash-to-bang time is also valuable for maintaining our discipline—surely our objective. Furthermore, if there are time limits, it is much more likely that the necessary resources will be put in place to achieve them. However, it is important to remember that certain types of cases—fraud comes to mind—will require much more time to investigate.
	There is good news: we are seeing signs of increasing military experience in managing the legal aspects of current operations. Clause 8 covers the offence of desertion. Many noble Lords will have received briefing on it, and I suspect a lot more is on the way. The other place expended much effort in considering this aspect. I hope that we do not expend quite so much. Members of the Armed Forces do not expect to be able to pick and choose which operations they are deployed on. They know that it is not their duty to determine the desirability or legality of any particular operation. However, there is nothing wrong with them considering and debating the matter among themselves. It is for Government and Parliament to make the decisions. However, it is a little disappointing for the Armed Forces at the conclusion of the Iraq conflict, which was over weapons of mass destruction, when none was found. It makes the operation of questionable legality, a point made by the noble and gallant Lord, Lord Vincent.
	I am grateful that the Government have already agreed to retain the annual continuation order. That is an important and highly desirable safeguard, a check on the Executive. We frequently debate defence matters these days, but when I started in your Lordships' House in 1992 we rarely did. The first Gulf War was over, and the campaigns in the Balkans were only just starting. Hopefully, one day our Armed Forces will not be so busy, and your Lordships will not be required to devote quite so much attention to matters of defence and security.
	The noble Lord, Lord Dubs, properly and skilfully raised the issue of First World War soldiers shot for military offences. I can think of few military justice issues that are as difficult to determine. I would be happy for the noble Lord to pursue his amendment, if only to enable me to carefully re-examine my current position that we should do nothing.
	In all three services, disciplinary problems can also be dealt with by administrative action rather than a prosecution under service law. My concern is with it becoming increasingly difficult to use summary jurisdiction: administrative action is being used instead. An obvious example is the loss of an identity card. I have taken summary jurisdiction action against my soldiers for losing their ID card. I had to do it once, and I never lost an ID card again. In using administrative action, there is no attempt to determine whether the soldier has failed or just been unlucky.
	Action can, in certain circumstances, be quite tough, however. It can include the termination of a career, even when just short of the pension point. That does not sit well with the concept of unlimited liability. I will read Hansard carefully, because I believe that the Minister touched on this problem and am sure that it will bear further scrutiny.
	The Bill seeks to improve the service grievance procedure. There is plenty of space for this. The Blake review proposes a commissioner for military complaints. The Government have responded to that report commendably quickly. I have yet to study that response, but am sure that it will result in plenty of debate during the passage of the Bill. We will have to look closely at the mischief a commissioner is to rectify. If he is to identify criminal activity such as Skinner's, it might not work since the victims would be understandably reluctant to report such attacks to anyone. I take it that we will see these amendments tabled before Committee stage. I will be pursuing numerous amendments as part of our scrutiny of the Bill at later stages. I hope that the Minister will have a good answer to each.
	Members of our Armed Forces perform fabulously well. The legislation underpinning their work must be just as good. I am sure that all noble Lords will seek to achieve that.

Lord Craig of Radley: My Lords, the noble Lord, Lord Drayson, and both the present and previous Secretaries of State and MoD officials, have made themselves available to many noble Lords to talk about this legislation. That has been extremely helpful and appreciated in one's attempts to understand a Bill of such importance to the Armed Forces.
	The service disciplinary Acts of 1955 and 1957 came into use soon after the United Kingdom subscribed to the human rights convention, but were not much affected by it until the last decade. Some significant changes, particularly in arrangements for courts martial and other criminal proceedings, were then introduced due to findings by the European court. Whatever its many merits, the convention has not been an easy bedfellow for the Armed Forces. It has led to changes for the three services which, in the manner of the services, they must learn to accept. But the tried-and-tested links between command and discipline have been weakened.
	Now is not the moment to rerun these arguments, so I turn to the Bill. It will be the basis for all service discipline for perhaps the next half-century or more. The Explanatory Notes are a model of what should be provided for such complex and detailed legislation, and I warmly thank the authors for that. I accept that the Bill is timely, not only because there is more joint expeditionary activity than occurred in most of my career, but the much reduced size of the three services makes it a sensible exercise in economy of scale as well. All three services have to compromise to some extent to achieve the commonality in treatment which the Bill now brings. That, too, I accept. But I have some reservations and questions which I shall now touch on, and may take further when your Lordships consider the Bill in Committee.
	First, in Clause 8, which is entitled "Desertion", is the meaning of "relevant service" sufficiently clear and usable when service operations may vary even more widely than is the case today? The Army and Air Force Acts of 1955 dwelt simply on active service, which is not mentioned in this Bill. The Naval Discipline Act of 1957 states that a person is guilty of desertion if he leaves or fails to attend at his ship or place of duty with the intention of remaining permanently absent from duty. Are the definitions of "relevant service" in Clause 8 sufficiently explicit for the crime of desertion? For such a serious charge, there must be no ambiguity about what constitutes the crime. Maybe the Minister will be able to reassure me.
	Secondly, I was surprised to see how frequently the Attorney-General is mentioned in the Bill and Explanatory Notes and by the number of specified responsibilities. For example, Clause 68(4) is a model of obfuscation of intent. Nevertheless, Clause 324 is a helpful exclusion. The Attorney-General gets but one specific mention in the Air Force Act 1955, and that is in relation to his consent to try a civil offence committed outside the United Kingdom which when committed in England is punishable by the law of England. The Bill suggests a much more hands-on role for the Attorney-General than heretofore. Would that be another prop to ward off those who might use the human rights convention and Article 6 to prise disciplinary responsibility out of the hands of the military? I should welcome some explanation from the Minister.
	My third concern is that I strongly disagree with Clause 116, which cuts the commanding officer out of the process of considering a serious charge against one of his personnel. All personnel under his command look to him for leadership. To bypass him on a critical matter affecting one of their comrades implies to his personnel that their CO may not be trusted. If he is not trusted on that, his trustworthiness may be undermined in his other areas of responsibility for his personnel. I noted the Minister's assurance that a statutory instrument will be introduced to address this concern. We need to see it soon.
	My fourth concern is with Clause 358. Tucked away in paragraph 731 of the Explanatory Notes is the statement:
	"There is no requirement that the DSP be a member of HM Forces".
	The noble and learned Lord, Lord Mayhew of Twysden, and other noble Lords spoke strongly about this. The three services have had uniformed legal branches for many years. The RAF legal branch was introduced in the 1920s. All three services have been expanding their number of uniformed legal officers—a growth area in stark contrast to the major reduction in overall numbers in the three services. There is a well mapped-out career pattern, and people in those branches would be less than human if they did not aspire to advancement in their chosen service and profession. To suggest that it might not be possible to identify and bring on suitable candidates for the post of DSP is a proper turn-off. Is it realistic to consider head-hunting an outsider for DSP who has had little or no experience of any of the three services? It would be as ridiculous as headhunting for a commander-in-chief. This post must be retained in uniform to give confidence to those being charged by him that he knows the services well.
	My fifth concern is the new arrangement for redress of grievance. The Bill introduces a service complaints panel that will have powers under Clause 333 to act on behalf of the Defence Council. I note from the debate in the other place yesterday on Deepcut that there is interest in the independent commissioner who is mentioned in Clause 334. I was pleased to note that Mr Ingram stated, more than once, the importance of upholding the chain of command. For the fighting services, that is essential. The government amendments mentioned by the Minister must not undermine it.
	It has been suggested that the service boards have been overloaded and that that has led to delay in complaints being resolved. I do not know what comparisons have been made with previous experience to support such an assertion. Service boards' membership has not been reduced that much, but the size of the three services and thus the likely number of complaints to be dealt with most surely has; if not, it indicates a level of dissatisfaction which must have grown alarmingly. My experience was that such matters deserved and had high priority.
	Paragraph 663 of the Explanatory Notes points out the importance of the statutory redress system. The case for changing a right that,
	"dates back to at least the 19th century"
	seems far too weak to me so far. I am also wary of the catch-all provision, Clause 332(2), which could, it appears, give the Secretary of State unbridled power to bar types of complaints.
	The Minister and other noble Lords mentioned the problems of delay; that is, a long time between a charge being made and it being heard. There is abundant evidence that the complexities of the law today are a major factor in delays. For the military system, it must make sense to deal expeditiously with charges and even to accept an element of rough justice as a result. Unresolved issues can have only an adverse impact on morale.
	I welcome the Bill and commend those who have brought it together, but there are a number of important points that should be further examined and debated.

Lord Boyce: My Lords, I thank the Minister for introducing this important Bill, and I welcome his intention to table an amendment to introduce a slip rule. My only ancillary comment on that is to ask him if he will confirm—I am not quite sure whether he did so in his opening speech—that lay members, in other words, service members, are involved in any reconsideration of sentence. Even if there is only a technical error, while that is a trigger to reconsider sentence it is vital that there is service input to the re-sentencing exercise.
	By and large, I welcome the Armed Forces Bill. It does much to modernise the single service Acts and to bring them together. However, we should not be seduced by the line that is sometimes paraded that the so-called "joint environment" is a sufficient basis for the Bill. I am glad that the Minister avoided saying that. We need to remind ourselves that the vast majority of our soldiers, sailors and airmen—more than 80 per cent—will serve their entire career in their own single service environments, whether on peacetime or wartime operations. That seems to be lost on a lot of people and on some Members of this House.
	I have some regret about the powers that Royal Navy commanding officers will lose as a result of the Bill, but as the Minister implied, that can be lived with, particularly in view of the fact that the powers being taken away have been used only rarely in recent years.
	On a more positive note, I welcome one particular aspect of the Bill mentioned by the Minister and other noble Lords: the efforts to deal with delay. The totally unsatisfactory delays in bringing people to trial that we have seen, such as in recently well publicised cases, are dehumanising, demoralising and bad for operational effectiveness. They must be eliminated.
	Moving from the general, I want to concentrate on two particular areas on which the Bill bears: the chain of command and service ethos. I make no apologies for knocking these particular nails out of sight. The maintenance of both of them is essential to the fighting effectiveness of our Armed Forces, who, contrary to some who would aver otherwise, are different from the rest of society. As such, and as the Bill broadly provides, they must have a unique system of military justice separate and distinct from the civilian system. My noble friend Lord Ramsbotham read out the four issues that the Judge Advocate General articulated to support the point, and I shall not repeat them. I am very glad to see those four points laid out in the Short Guide to Sentencing in Courts Martial that was published by the Judge Advocate General at the beginning of this month.
	However, having implied that I am broadly content with how the Bill sits with all these points, I have residual concerns. I shall deal first with the chain of command. As I said in this House 11 months ago, the commanding officer, who has total responsibility for command of his ship or unit, must in turn be responsible for, and implement, its discipline. It is impossible to achieve and maintain the necessary level of discipline unless those who are under his or her command are in no doubt that their commanding officer has authority over them. In this context, I worry about the authority that the Bill provides for the service police to approach directly the Service Prosecuting Authority for Schedule 2 offences, in theory with the right to bypass the commanding officer.
	I do not hold out much hope of persuading the Minister to change the Bill to satisfy my concerns in this matter. However, providing such an authority could undermine the commanding officer's authority, and I welcome the Minister's explicit reassurance on this matter. Will he ensure that the "prescribed matters" to which Clause 127(3)(e) refers, when defined in the regulations, make it clear—the noble Baroness, Lady Dean, alluded to it—that, in all cases instigated by anyone other than the commanding officer, there is a duty on the service police to notify the commanding officer of any investigation under way, of the progress of that investigation and, if they extend the scope of the investigation and the case is passed to the Director of Service Prosecutions, of the progress of the case? The regulations should explicitly require the Director of Service Prosecutions to be notified of relevant information such as the operational context within which the alleged incident occurred. I recognise that the Minister mentioned this, but I was not quite sure from his introduction that the point would be driven hard in the supporting regulations.
	On the single-service ethos, I raise two points relating to courts martial that need to be addressed. First, the Judge Advocate General told the Armed Forces Bill Select Committee that it would be illogical for the panel of a court martial to be retained from the single service of the accused and that the default should be a mixed panel with just a senior lay member from the same service as that of the accused. I have real difficulty with this and believe most strongly in the importance of ensuring that the regulations governing the composition of courts martial stipulate that lay members be drawn from the same service as the accused. I am afraid that I have some difficulty with the line taken by the noble Lord, Lord Thomas of Gresford. If co-accused from different services are before the same court, at least one member from each service should be represented in the dock. I think that I was reassured by the Minister saying in his introduction that he supported this view.
	My second point arises from the suggestion that the bulk of courts martial in the United Kingdom might take place in one of the three new Army centres—Bulford, Colchester and Catterick. This is short-sighted for two reasons. First, it is extremely important that justice is seen to be done in the local community where the offence occurred—by "local community", I mean service community as well as geographical community. Secondly, the court martial system is designed as a deployable system of justice and should therefore be focused on key areas of service activity, which must include Scotland and the south-west.
	The next issue that I want to raise has been well aired this afternoon. It relates to the qualifications of the Director of Service Prosecutions. It is not enough, as the Minister said it would be, for the director to have a sufficient understanding of the services. The Director of Service Prosecutions must have relevant uniformed service background. This is not stated in Clause 358 and an amendment might be appropriate. I would be grateful if the Minister would elucidate what other criteria would be applied in the selection of the DSP. Who will be involved in that selection? What role will the Attorney-General play in it? My noble and gallant friend Lord Vincent voiced similar queries.
	I wish to raise one further area of concern which is separate from ethos and the command chain, but which affects both: the readiness of the Armed Forces to implement this Bill in 2008. A significant number of references are made in the Bill to regulations. Although most of them, I expect, will be non-contentious, a number are extremely important; for example, what exactly is to be included in the "prescribed circumstances" in Clause 127(2)(c), which relates to the duty on commanding officers to inform the service police in Clause 114? This is particularly relevant, not least given my and others' concerns about the important role of the commanding officer.
	Due to the scale of change which the Armed Forces are being asked to absorb, it is important that all regulations are made sufficiently early to ensure that commanding officers, service police and others can be properly trained in their application. Given the scale of change represented in this Bill, I fear that the 2008 implementation date may already be too challenging, and there are strong arguments for a staged approach in some areas in advance of full implementation of the Act to ease the process for commanding officers, service police and disciplinary staff. When will we see these regulations?
	As I have said, I greatly support the Bill, but I ask the Minister to take on board the points that I have raised to give confidence to our sailors, soldiers and airmen that the importance of the command chain and service ethos is recognised in full.

Lord Borrie: My Lords, just over 10 years ago, the European Court of Human Rights ruled that this country's court martial system did not comply with Article 6 of the European Convention on Human Rights, which guarantees anyone charged with a criminal offence the right to a hearing before an impartial tribunal. The matter was soon remedied by the Armed Forces Act 1996, which, among other things, provided for a legally qualified prosecuting authority and made the legally qualified Judge Advocate General a member of the court. That Bill was enacted by a Conservative Government, so it is a little surprising to note that, on Second Reading in another place, the Conservative Member of Parliament for Canterbury referred to this Bill as continuing,
	"an ugly trend towards civilianising the military world".—[Official Report, Commons, 12/12/05; col. 1176.]
	I follow the noble Lord, Lord Astor of Hever, the Conservative spokesman, and the noble and gallant Lord, Lord Boyce, the previous speaker, in saying that we need a separate system of service law. That view is perhaps common to us all in this House. However, this Bill continues what I will call the desirable trend, through a number of Governments of different political colours, of making the separate system of service law fairer, more independent and, as time goes by, more appropriate for the service men and women of the 21st century. I am sure that the noble Earl, Lord Attlee, will agree with me in tracing that trend to the last year of his grandfather's Government in 1951, when, for the first time, an appeal system was introduced against the findings of courts martial.
	I do not think that I have heard it said today that the Bill gives a remarkable universal right to anyone who is charged with a criminal offence to elect trial by court martial instead of being tried summarily by their commanding officer. It also creates a more professional, single-standing court martial composed of three persons, five persons or possibly more, which is to be determined by regulation. I would welcome any information and clarification that my noble friend can give on the criteria for saying that the court martial will be of any particular size.
	My interest in the court martial system dates back more than 50 years to the Korean War when, as a newly qualified barrister, I found myself attached to the Directorate of Army Legal Services for Japan and Korea. I must admit—I hope that none of the noble and gallant Lords who have spoken today will disagree too much—that there was what I would gently call an "amateurish" approach to the appointments to individual courts martial, which this Bill seeks to change. What I remember observing all those years ago was really not worthy of a modern Army.
	Like the noble Lord, Lord Thomas of Gresford, I note the most interesting advice and views given by the present Judge Advocate General, Judge Blackett, to the Constitutional Affairs Select Committee of another place. He was critical of the military members of the court martial having any role in sentencing. Perhaps unusually, I found myself in agreeable accord with the noble Lord, Lord Thomas of Gresford, on Judge Blackett's suggestion that the members of the court, other than the Judge Advocate General, should be treated like a jury in a civil court, which has no role in sentencing. If there are particular military or Ministry of Defence considerations that affect or perhaps ought to affect sentence in their view, these should be put to the Judge Advocate General in open court, who should be left with the sole responsibility of determining sentence.
	I wonder whether the Minister would comment on the point also made by the noble Lord, Lord Thomas of Gresford, with very recent experience of courts martial, that whereas a civilian jury has to vote at least 10:2 to get a guilty verdict—that is only after it has been persuaded to try to reach a unanimous verdict—a court martial may privately come to its view by a simple majority of the three, five or seven members.
	Of course, there have always been differences of many kinds in the procedure of a court martial compared with a civil court, but the issue may be more important now. This point has not so far been mentioned, but I hope that the noble Lord, Lord Thomas, will agree with me on it, as I have agreed with him, because it logically follows from what he said. The matter of majority has become more important because Clause 50 will extend the jurisdiction of a court martial to include even the most serious offences committed in the United Kingdom. Those offences will no longer be within the exclusive jurisdiction of the civil courts.
	I do not object to this extension of the service jurisdiction, because the facts and so on of the manslaughter or whatever may solely affect military people. I am happy that the normal primacy of the civilian system over offences committed in the UK should give way where the offence has an entirely service-related context. As we know, the noble and learned Lord the Attorney-General has a superintendence—I think that that is the proper word—of the services' prosecuting authority, as well as a supervision over the civilian Crown Prosecution Service, and so is the appropriate person to determine in what kind of court borderline cases should be heard.

Lord Campbell of Alloway: My Lords, I have listened to the noble Lord with great attention. Perhaps I may ask with respect whether he could help the House on a point made by the noble and gallant Lord, Lord Bramall. What is his view on the qualifications of those who sit on a court martial in judgment for murder, manslaughter and serious breaches? Will the noble Lord give us the advantage of his opinion?

Lord Borrie: My Lords, I do not think that I can give an answer to the noble Lord, Lord Campbell of Alloway. If he is talking about members of the court martial, I have no doubt that those who are concerned with appointments will ensure that the most experienced people will sit on the court dealing with the more serious charges as opposed to the less serious offences, if I have understood the noble Lord correctly. I am afraid that I shall have to leave it to my noble friend to reply more fully.
	The noble Lord, Lord Astor of Hever, referred to the article in the Daily Telegraph on Monday by the noble and learned Lord the Attorney-General. It was excellent that the Daily Telegraph should give him that opportunity because it was one of the papers most critical of the case of the three guardsmen, which has been referred to by many noble Lords. I am glad that the Attorney-General had the opportunity in the Daily Telegraph to specify that, although the court martial of the three guardsmen charged with manslaughter had resulted in an acquittal, the military prosecutor, two senior civilian Queen's Counsel and the Judge Advocate General in the case all took the view that there was—I deliberately use the Attorney-General's phrase—"credible evidence" to justify the prosecution. To add my own words, I fear that too many people have asserted, because there was an acquittal, that there could not have been adequate evidence to start with, which I think was quite wrong.
	I believe that there has been very justifiable criticism of the delays in that and other cases. The maxim of Magna Carta that "justice delayed is justice denied" applies across the board to the service system as well as to the civilian system. But of course I also wish to follow my noble and learned friend the Attorney-General in emphasising—I do not think that anyone in this House would disagree—that no soldier is above the law. I accept the Attorney-General's reasoning for saying that, given the credible evidence point, the weight of Queen's Counsel and the military authorities involved, the prosecution was fully justified.

Lord De Mauley: My Lords, I declare an interest as a recent commanding officer of a Territorial Army regiment. Before going further, perhaps I may say how pleased I am at the recent acquittal of the soldiers of the Irish Guards in their court martial. The fact that two of them have indicated their wish to cease serving as a result of the way in which they have been treated ought to give a strong message to the Government. If we continue in the direction that we are going, more will follow.
	It would be logical for me to focus my contribution in this debate on the powers of the commanding officer in the Army and on his centrality to everything that the Army does. It is difficult for anyone who has not served in the Army to understand fully the role of the commanding officer. It is helpful that several of the noble and gallant Lords who have spoken so eloquently today have, despite ending their military careers at least five ranks above that of a commanding officer, emphasised the significance of that position.
	But let me add my voice to theirs. An army is an organisation which exists to exert the will of its government by the controlled use of force. I emphasise the word "controlled". Those who are the instruments of that army—the individual soldiers—must, of course, be capable of aggression, but, equally, they must be controlled very carefully indeed. This means that they must have a respect for authority quite unlike modern civilians. Inevitably, there is a hierarchical structure, but one person, one appointment, has to be the pivotal point in that hierarchy, and in the British Army that person is the commanding officer.
	A regiment or a battalion—I use the words interchangeably—is commanded almost always by a lieutenant colonel. He will have at least 15 to 20 years' experience of commanding soldiers. A regular commanding officer will inevitably have operational experience and he will have been through the Army's rigorous command and staff training procedure.
	I said a moment ago that in the British Army it is the commanding officer who is the pivotal point in the hierarchy. This arises for several reasons. The first of these is what we call the regimental system, under which the regiment is central to a soldier's existence—he normally wears its badge throughout his career—so the man or woman at its head is naturally the key person to his career. The second reason is because, operationally, the commanding officer is at the highest position at which it is possible to know each soldier personally, as well as the operational situation he finds himself in, and is the most senior person to maintain responsibility for him beyond just the operation on which they are both currently engaged. A regiment may move from one brigade to another, but a squadron or company—even if detached for a phase of an operation—remains always part of its original regiment and always returns to it.
	The regimental system may have arisen for historical reasons, but it has been retained because it works very well indeed. Accordingly, the ethos of command within the Army is designed to foster it and everything flows from it. The powers and centrality of the commanding officer are therefore something which we tamper with at our peril.
	Perhaps I may turn now to a couple of specific areas where I see the Bill at risk of detracting from those powers and to which I hope we will return in Committee. Where the Special Investigations Branch of the Royal Military Police is tasked to carry out an investigation of a serious case, such as a murder, rape or a breach of the Official Secrets Act, the Bill proposes that the report of the SIB should go to the Army Prosecuting Authority, whereas currently that report goes to the commanding officer. If this change is made, even should there be a requirement that the commanding officer is kept informed of the progress of the investigation, it still represents a chipping away at his authority. It would be vastly better to avoid this tinkering and maintain the status quo. A list of offences means that the commanding officer could be obliged to refer to the APA those of a certain level of seriousness.
	We are assured by the Minister that regulations will set out that the commanding officer will be informed but the main channel of communication is to be between the SIB and the APA. So one can envisage a situation where a sergeant investigates a case and reports on it to a captain prosecutor, but there is a risk that the commanding officer, a lieutenant colonel, is missed out of the chain. This must be wrong. The commanding officer must be able to put the operational and command perspective and his experience—which will in almost every case be considerably greater than that of either the investigator or the prosecutor—into the equation.
	For the Government to say that the issue of informing the commanding officer will be dealt with in secondary legislation misses the point entirely. I reiterate that the centrality of the commanding officer is crucial. I understand that the drafters have resisted change because they say that the matter is of no consequence. But that is wrong. It is absolutely critical to the position of the commanding officer, whose authority will be undermined if the Bill proceeds as it stands.
	We are told that the concern is that if it is on the face of the Bill that the commanding officer is to be informed and the investigator then fails to inform him, that would risk the whole case. But this is a fundamental point—it should risk the case. It would be an injustice to the soldier and, indeed, to the victim of an alleged murder or rape, for the commanding officer not to be informed, because if he had been informed he may have been able—because of his greater experience and specific knowledge of the context of the alleged offence—to highlight facts that would otherwise not have come out until much later in the case, thereby avoiding delay in the achievement of justice and unnecessary cost.
	It might be argued that currently if a commanding officer receives a report on one of his soldiers in which it appears that that soldier has committed a serious offence, he has a conflict of interest between his duty of care to his soldier and his obligation to enforce justice. However, under the status quo before enactment of the Bill, he has had to bring a balance to the situation. If the Bill is enacted as it stands, the danger is that, being relieved of his responsibility to see justice done impartially, he will feel forced by the fact that his only duty is that of care to the accused soldier and to take the side of that soldier to the detriment of justice.
	There is a modern assumption that conflicts of interest are always bad and to be avoided at all costs. But we face conflicts of interests every day of our lives. Any of your Lordships who served in the other place as a constituency MP, merely by accepting a party Whip also accepted the potential for a conflict of interest. Your duty was to vote with your party when required to do so by your Whip; equally your duty was to your constituents. Sometimes—rarely, one hopes— those interests could be in conflict. You could not avoid that conflict; you had to accept responsibility for your actions. It is similar in this situation. To remove this part of the commanding officer's responsibility will remove a key element of his authority.
	I turn now to another area in the Bill where I see the commanding officer being undermined—that is, in the creation of a military complaints commissioner. The problem, of course, is that young soldiers do not make complaints. The argument of those behind the concept of a complaints commissioner is that the reason young soldiers historically have not complained is because complaints have had to go up the chain of command, and if your complaint is about your corporal—your immediate boss—you naturally fear that he will suppress it and, worse still, make your life hell. But the Army has done something about this. It has, for instance, set up a text line for soldiers to make complaints which go direct to the commanding officer. But no one has complained. Do we suppose that they will complain to a military complaints commissioner either? Of course they will not.
	What is needed is to make the chain of command work better, rather than to change the system. The commanding officer is there to be complained to. Soldiers need to be encouraged to direct their complaints to him. The Army agrees that there does need to be transparency, so it has set up an independent reviewer to look at processes and propose improvements. To jump the gun by introducing a new appointment will achieve little, if anything, but it will further undermine the centrality of the commanding officer.
	There are other areas in the Bill on which I would like to have commented, particularly on the need for the Director of Service Prosecutions and prosecutors to have military experience and on the process of review, but in view of time constraints, I will leave them on one side today and reserve the right, if I may, to comment in Committee.

Viscount Slim: My Lords, like other noble Lords, I start by thanking the noble Lord, Lord Drayson, for all the great help and assistance he has given us over this Bill. None of us, I think, pretends to be a lawyer and we have different experience. We have considerable military legal experience, but we like the way in which we were briefed and the way in which the Minister listens. It is rather refreshing to find a Minister who listens and I commend him for it.
	We also owe a debt of thanks to the other place. I think the committee there did a good job. There were disagreements, as there are in any committee, but what has emerged is pretty good. I think it was not always given the full picture—one seldom gets a full picture—and I also get a little worried when the Minister says that we can perhaps put some of that right by regulation. As has been said, quite a lot more is required on the face of the Bill.
	I shall talk gently to the noble Lords, Lord Thomas and Lord Borrie. I am sorry that I did not meet the noble Lord, Lord Borrie, in Korea, although it is probably just as well that I did not because it would probably not have been to my advantage. In my day—I cannot speak for today—military law was a subject that an officer had to grapple with. Military law was an exam—a pretty stiff one—with a 60 per cent or 70 per cent pass rate that you had to pass to get into a staff college. Military sentencing was part of that. The difference from the 12 men good and true on a jury picked from everywhere—marvellous as those men and women are—is that an officer is legally trained better.
	Sitting on a court martial, as most of us in your Lordships' Chamber today have, one was the prosecutor, the defender, a member of the court martial, speaking about someone's character or in mitigation. I have to confess that I served on one for murder. In those days one could hang. That brings you up with quite a jump and you have to be really serious. To those who pooh-pooh the military legal system, as civilian barristers and solicitors sometimes like to do, I would say, "Have a care". We officers have a rough idea. We have had people in front of us for sentencing, so if you do not mind, that is it.
	An Attorney-General worth his salt—and all whom I know are—who had no military experience, would certainly want his director of prosecutions, over whom he has superintendence, to have military experience. Otherwise, where will he get military advice? As one of the noble and gallant Lords said, the judgment is often a military judgment. Military advice is needed for fighting wars, operational experience or whatever. Again, I think that that is a dangerous part of the Bill at the moment—to just list a set of legal requirements of what you want in your director of prosecutions. I hope that the Minister will take that on board.
	The noble and gallant Lord, Lord Inge, mentioned that the reviewing process—the review board—is no longer there. It is no longer there because, when this Bill of human rights emerged, unlike other countries such as France and America, we did not say no. I do not know what it is about this great European market, where Ministers go and kowtow and agree to everything; they sign everything and never say no. Other people do, but Great Britain does not. We are in a pickle because that review board was a critical piece of confidence to those being court-martialled.
	The review board was also extremely good training for the senior officers on it who had to make heavy decisions and great considerations. What happens now is that we need to get round that. We have a thing called the slip rule—if I remember, it is on page 31 of the report. We are trying to put something similar in place. All that I would say to the Minister at this stage is that the slip rule is very important. Putting it as politely as I can, people seem to be going round in circles about it and I hope that the Minister will include it or get something firm.
	On the next page, what slightly worried me was how we would deal with the civilian staff who work for the MoD—provision of the rules for civilian staff. I am rather amazed that the Government have spent so much time civilianising the Army, Navy and Air Force that they have not got their civilians in line. They talk about the rights of the civilian. I would rather talk a bit more about the duty and responsibility of civilians in operational areas. An operational area could be a Royal Air Force base in Cyprus or a logistics base somewhere for the military or the Navy, or a logistics ship—I do not know how many civilians they have on them these days—that does logistics for the Royal Navy. However, that is another thing that has not been looked into and I get the impression that civilians whom we employ—whether local or British—are not put in a room and taught. They do not have lectures or seminars about their responsibilities and the rules of their engagement when war breaks out and they are in an operational area.
	I am also worried about the rush to say that this is a marvellous thing, although I do think that it is good. I am very pro this Bill, but single service courts martial are necessary. I do not tell the noble Lord, Lord Garden, how to fly his Tornado. He does not tell me how to dig my slit trench and go on a fighting patrol at night. Both of us are far too scared to tell the noble and gallant Lord, Lord Boyce, how to handle his ship and what should happen on board. There are differences and civil lawyers had better understand that.
	Finally, I want to say a little about the rules of engagement. I have warned the Minister that I have been hearing some rather funny stories: I do not know whether they are true. I was told about an incident in Iraq where one of our soldiers, groups, platoons, sections or whatever was fired on. We returned fire, but the moment that the chaps turned their backs and ran off, the soldiers were told to stop firing because these chaps were no longer a problem because they were not firing at them any more. I also heard that some fled on to a boat and it motored away and they were no longer a danger to our troops.
	I find that very difficult to believe, because all we would succeed in doing is allow someone who had been shooting at you to get away so that he could come back and shoot at you and probably kill you tomorrow. I simply cannot bear that sort of pathetic political correctness. I am glad that I am not involved because I would certainly shoot any enemy who had shot at me and then disappeared by running away. We had better be careful in Afghanistan—it is a different kettle of fish there. We will be a laughing stock if that sort of thing is applied.
	If one was a wag—and I am just tweaking the Minister's leg a little—one could apply that to the killing of Abu Musab al-Zarqawi the other day. He was killed sitting in a house; he was not slitting anyone's throat at that particular moment. He was not hurting anybody and two five-pound bombs fell on his house. Jolly good, I say. But what logic are you working on in your rules of engagement? This is what I am asking the Minister.
	This was a good report. There are 65 recommendations at the end of it from the House of Commons committee—very good ones, I thought. It is quite often a habit that when these reports come, they are put on a shelf and forgotten. I would like the Minister to say to us every so often, "We have done point 120, or recommendations 20 to 30 or we are working on half a dozen here and there and something is happening". I wish the noble Lord, Lord Ramsbotham, was here because there was a case in the prison service, on which I was on the periphery, some years ago, where there were 93 points on a report and within 18 months, only two of them had been actioned. I am just jogging the Minister, who works hard, for nothing and I commend him greatly. But we are entitled to know how this progresses.
	I look forward to the Committee and I welcome this Bill. When I first came to your Lordships' House, 35 years ago, I was told, "For a debate like this, 13 minutes and then sit down".

Lord Garden: My Lords, this has been an excellent debate. We have ranged from the grand strategic down to the detailed implications of particular sub-sub-clauses of the Bill. I was grateful for and enjoyed the setting of the context for all of this made by the noble Lord, Lord Judd. The need for a fair, transparent military justice system which does not undermine the military leadership is an important part of the way we have to operate today and we need to see the Bill in that context.
	The experience of all the speakers has been extraordinary. We have had experts such as my noble friend Lord Thomas of Gresford and the noble Lord, Lord Campbell of Alloway, who know the court-martial procedures from the lawyers' perspective. We have had all the noble and gallant Lords who have had to dispense military justice at every level of command. We have had the noble Lord, Lord De Mauley, with his experience as a commanding officer and we have even had the noble Earl, Lord Attlee, as the recipient of military justice, giving us his experiences.
	I trust that the Minister is pleased by the generally positive reaction from around the House. It is a complex Bill but it has had a generally good reception from all quarters today, and rightly so. The noble Lord, Lord Borrie, was right to tell us that it was part of a development of military justice. You can look back and see how we have moved towards a fairer and more transparent system as time goes on; this is a part of that and I welcomed his speech.
	The Bill is a significant milestone and moves towards bringing the practices of the three branches of the armed services together. While the Royal Navy, the Army and the RAF have different histories, traditions and cultures, they work seamlessly together on joint operations. However, I find myself disagreeing slightly with the noble and gallant Lord, Lord Boyce, about how often we find ourselves operating together. I remember 20 years ago as the commanding officer of a support helicopter base that I had both RAF and Army personnel serving together under me. Yet if a soldier and an airman ended up in some alleged offence which they were involved in together, it was impossible to deal with them under the same system, the acute—

Lord Boyce: My Lords, I did not say that soldiers and airmen do not operate together in joint environments such as the one the noble Lord mentioned. I said that the vast majority of sailors will never see a soldier in their lives in the single environments in which they operate

Lord Garden: My Lords, I am grateful to the noble and gallant Lord, but I remain in slight disagreement with him. When there are increasingly such situations, justice is administered by two different commanding officers and it is not seen as fair to anybody involved in it or to those serving in the unit. I welcome the move towards a single system of military justice.
	Many noble Lords have said that the Minister, the Ministry of Defence and the Bill team have been absolutely punctilious in keeping us aware of how the Bill has been developing over time. It is a substantial and complex Bill and I thank the Minister for involving us. I should just correct the assertion made by the noble Lord, Lord Ramsbotham, of 34 stars. We make it 35 from these Benches. They are in cahoots with the Conservative Front Bench and their researchers. I have to tell the Minister that three stars that sit on the Lib Dem Benches will be doing it independently. That may be a good thing or a bad thing.
	We are going to have a lot of detailed work to do in Committee. An Armed Forces Bill presents an opportunity to consider some other aspects of modern military service. I need not remind your Lordships and many have already said it—we expect an enormous amount from the dedicated men and women who serve their country in the Armed Forces. We also expect them to operate under a much more stringent legal framework than those in civilian employment. That is understandable as the state authorises military personnel to use lethal force, and we must be certain that we have a disciplined body to deploy such force. At the same time, the state also owes a duty of care to its military given the sacrifices that they make of their freedoms and perhaps even their lives. We have talked about the sorts of ways we should approach that, in terms of reducing delays of justice and putting time limits within the Bill. We will certainly want to look at that in Committee.
	The Army's formulation of the military covenant expresses very well the approach we need to have in this, in that soldiers are expected —and I would extend this to other services—to make personal sacrifices in the service of the nation. But the other half of that bargain is that British military personnel must always be able to expect fair treatment, to be valued and respected as individuals and they and their families will be sustained and rewarded by commensurate terms and conditions of service.
	It is therefore against both sides of the covenant that we must judge the Bill. We have talked mainly about the effect on the chain of command and the commanding officer; we also need to be thinking in Committee about the individuals who are subject to this law. In that respect, the report by Nicholas Blake into Deepcut is a remarkably useful document in one respect—that is the training of young servicemen. But it does read across into other parts of the Bill. It was unfortunate that your Lordships did not have a chance yesterday as they did in another place, to debate the Statement that was made about the Ministry of Defence's response. That would have cleared some of the issues that we will have to talk about in Committee.
	The principles that I will be looking for in the way that the Bill goes forward is whether we are putting the right conditions for young men and women in the forces that are appropriate to the 21st century, rather than just an amalgamation of practices, some of which had their genesis in Victorian times.
	I turn now to the question of how the three Service Discipline Acts are to be merged as we have had some discussion on that. The Army and RAF elements are fairly closely aligned at the moment. We have heard why historically the Royal Navy gave its commanders greater powers and I add my congratulations to the Bill team for managing to get a good measure of agreement so that the three services can operate with a common list of offences. Those at Part 2 of Schedule 1, which require permission for the commanding officer, are a good way to introduce the flexibility that we have talked about to meet different operational circumstances.
	We will need to consider in Committee maximum punishments and the detail of the offences which my noble friend Lord Thomas of Gresford addressed in his opening remarks. The noble Lord, Lord Judd, dealt in particular with Clause 8 on desertion, as did the noble Baroness, Lady Dean. That will need to be looked at, mainly because the punishment now is so disproportionate to the way people think that very few people are charged with desertion. It is also a question of making the Bill useful so that the various levels have practical utility. At the same time, the noble and gallant Lord, Lord Craig, raised important issues about the definition of active service in respect of Clause 8.
	The main discussion, not unexpectedly, has been about the role of the commanding officer and whether the Bill diminishes it in some way. There is particular concern among a number of noble Lords about the inability of the CO to dismiss a charge for a Schedule 2 offence. I am not inclined to believe that the Bill diminishes the standing of the CO; it seems appropriate that if he cannot handle a particular offence, he ought not to be able to dismiss it.
	We have also discussed the new arrangement for having a director of service prosecutions instead of the individual service prosecuting authority. Again, in the context of the Bill that seems a reasonable way forward, but we will want to have deep discussions in Committee about how to define the experience level that is needed for the holder of this post. The arguments made by the Chiefs of Staff to the Select Committee on the Bill about the need for military experience supported by all noble and gallant Lords and noble Lords throughout the House seemed totally persuasive. We will need to look at how we can define that job specification to get the right person there.
	With regard to what the Bill does for the rights of individual service personnel, I shall want to look at a number of issues in Committee. On the key area of complaints and redress to which a number of noble Lords have referred, we have ample evidence—as the Minister confirmed in his opening remarks—that the system is flawed and not terribly well understood. Those who believe they have cause for complaint worry that complaining will have an adverse effect on their career, and their complaints are often not taken forward promptly by the chain of command. It is not new: Sir Michael Betts, in 1995, as well as Blake, recommended the need for an independent complaints system. My noble friend Lord Roper raised the issue, as did the noble Lord, Lord De Mauley. Such an independent commission, according to the Blake proposals, would be able to examine complaints of any nature from any member of the Armed Forces. Other nations, such as the United States and Australia, manage to operate a perfectly satisfactory military system with parallel independent systems.
	As my noble friend Lord Thomas of Gresford said, the Bill is very timid in this area. It offers the prospect of an independent member of the service complaint panel if the Secretary of State decides it is appropriate. Despite this morning's headlines in the newspapers about military ombudsmen, the Government response to Blake, issued yesterday, offers only a minor modification. It is not enough; we will need to know how we are to meet recommendation 26 of the Deepcut review. Perhaps the Minister could say whether he has had a reaction yet from Mr Blake about whether he feels that his that recommendation has been met.
	We will need to look at how to get a commissioner of military complaints who can look more closely at unresolved complaints concerning a wider field than just harassment and bullying. We will seek to amend the Bill to meet this need and will consider the government amendments.
	There are many other aspects we will need to probe in Committee. The provisions relating to civilians has been mentioned by some; it is an area requiring consistent treatment. We have talked about the size of courts-martial panels; their service composition will be a matter for debate. I have less of a problem than many noble and gallant Lords and even my noble friend Lord Roper at the thought of having mixed services. If we are moving to a unified service discipline system, mixed courts-martial panels will have some advantages in terms of consistency of approach. We will doubtless discuss that in Committee.
	A great deal of detail is left to regulation. The noble and gallant Lord, Lord Craig, the noble Baroness, Lady Dean, and my noble friend Lord Roper drew attention to the need for us to have some idea of what will be in the regulations. I have a suspicion that the Government have not yet thought that through, and we may have problems in getting enough of the information about the regulations in Committee. We need to see the context of the Bill, and someone in the MoD will have to burn the midnight oil for us to be able to do that.
	Finally, I take this opportunity to say a few words about implementation. The noble and gallant Lord, Lord Boyce, spoke about the scale of the change. I know that the Ministry of Defence has thought about this, but it will nevertheless be a daunting task. Rather like the noble Viscount, Lord Slim, I built up my knowledge of Air Force law over many years—initial training, promotion exams, serving on courts martial and then various levels of command. That is the easy way, but it takes decades to do. Implementation in a couple of years will mean an extraordinarily steep learning curve for a large number of people, and a large training requirement for those who have to operate the new system. They must not make mistakes with it; we do not want that to happen because we have rushed this. I believe that a cautious approach should be taken. If it proves, as it may well do, more difficult than planned, sufficient time must be allowed.

Lord Kingsland: My Lords, I know that the Minister will agree with me when I say how lucky we are as a nation to have a House of Parliament which boasts no fewer than six former Chiefs of the General Staff to contribute to a debate such as this. I hope that he will also agree that the signals that we have received from them have been remarkably similar in both content and tone.
	Unlike most noble and gallant Lords and noble Lords, I have only just become involved in the Bill. Therefore, I have not been able to observe at first hand what all other noble Lords have observed: that is, how helpful the Minister has been in the run-up to this debate. I find the hearsay evidence very powerful, however, and on that basis, I, too, thank the noble Lord for such co-operation.
	I was particularly interested in a paragraph that the Minister read in the early phases of his contribution this afternoon. It was about both investigations and tribunals. The noble Lord said, "Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context". I pause there to ask the Minister—he need only nod or otherwise—whether, in saying that, he was referring to the future Director of Service Prosecutions. He nods. I am most grateful to him. The noble Lord then went on to say, "and any trial of such an offence should be before an impartial tribunal, comprising serving members of the Armed Forces with an independent judge". There, I take it, as the Minister, in effect, says so in terms, that he is indicating the courts martial tribunal.
	Many noble and noble and gallant Lords have emphasised how important it is for the services to have a distinct system of military justice because of the special factors that inform combat circumstances. I conclude from the Minister's statement that, in future, all operations issues that give rise to possible legal proceedings will be investigated solely by the military police and the director of service prosecutions; and if it is decided to prosecute, that prosecution will take place solely in front of a court martial. That seems to be the ineluctable logic of what the Minister has said.
	I received the statement with great pleasure. It seems to relieve my noble friend Lord Campbell of Alloway of his task of promoting his amendment in Committee because his amendment refers to circumstances that appear now never likely, or, indeed, possible, to arise again: where the Attorney-General requires or asks for cases to be referred from the military prosecutor to the civilian prosecutor or from a military tribunal to a domestic tribunal. It appears that the Government have accepted the logic of the argument, which has been pursued from all parts of the House in a number of debates in the past 12 months, that it is wholly inappropriate, indeed, constitutionally improper, for a proceeding that begins in the military context to be shifted to the civilian context.
	I was also struck by what the Minister said about delay. He said that, at worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. We all wholly endorse that statement by the Minister. I recall particularly the words of the noble and gallant Lord, Lord Craig of Radley, when he said that unresolved issues have an adverse impact on morale. That is not just the morale of the individual serviceman but the morale of the unit in which the serviceman serves; because, to draw the kernel of the speech that my noble friend Lord De Mauley, made to your Lordships' House, if other members of that unit see that the soldier is being hung out to dry they will wonder what will happen to them if, by any chance, they are in a similar set of circumstances. If the situation is not addressed, we will see the crumbling of great regiments.
	I was a little concerned that the Minister did not go on to consider the problem of delay in terms. One of the most serious aspects of delay is the conduct of military investigations. There is nothing in the Bill that seems to help. Why is there such delay in the investigations by the military police; is it that there are not enough of them? Is it some defect in their training? Is it that they lack the quality that the civilian police have? Or is it that they lack the authority within the army structure? Or is it a mixture of all of those? It seems to me that we will never get to grips with the problem of delay until we get to grips with the way in which the investigations are conducted. I wholly agree once more with the noble and gallant Lord, Lord Craig of Radley, that there must be an end to this sooner rather than later; because the Armed Services have to get on with the job that they are employed to do, which is defending the security of this country.
	There is also another aspect of delay, which came out forcibly in the Trooper Williams case. During the long delays, in intolerable circumstances, that Trooper Williams suffered, he apparently received little support from the Ministry of Defence. I derive that information from a note written by General Sir Anthony Walker, a man under whom I had the honour to serve as a reserve officer when he commanded the Third Armoured Division in Germany. I have no reason to believe that the following statement that he has made in this note is anything other than absolutely true:
	"At an early stage it became apparent that Trooper Williams was going to find no champion within the MoD and indeed there seemed to be a desire among senior officers to distance themselves from the case. There was a qualitative difference between the reactions to this case within the MoD and the reactions within the Metropolitan Police to the Stanley case".
	This is the difficulty with taking a case out of the regimental context. Every solider knows that if a matter is within the power of his commanding officer, his commanding officer will look after him. But once the issue goes beyond the regiment, who is going to look after him? If it is not the Ministry of Defence, no one is going to look after him. It is absolutely crucial—and I hope that the Minister will address this point in his winding-up speech—that soldiers who are going to be prosecuted in front of the court martial in circumstances where the commanding officer appears to be being sidelined by the legislation are looked after properly by the Ministry of Defence during the whole of the proceedings. That is not only what he would expect but what all his regimental colleagues would expect. It goes to the heart of all the concerns that have been expressed by noble Lords and noble and gallant Lords about the way in which the commanding officer has been treated in the legislation.
	We feel strongly that rules of engagement should take statutory form. The rules of engagement in effect are likely to determine whether a soldier has committed an offence. They therefore define the criminal law; they define the scope of the crime, the boundary between what one can and cannot do. The Human Rights Act, which has been much talked about today, makes reference to Article 7 of the human rights convention, which requires that, if someone is going to be prosecuted for a crime, the nature of that crime must be clear to them before they undertake the activity that leads to its breach. If I am right about the rules of engagement defining the scope of the crime, Article 7 of the convention on human rights requires that they are part of the criminal law. It must follow, therefore, that the rules of engagement must take statutory form. We will certainly be tabling such an amendment in Committee.
	However, there is another ingredient in combat issues: the surrounding circumstances. One of the most important issues in surrounding circumstances is the orders that are given by both the commanding officer and the junior officers to the various men under their command. In specific situations, on a daily or even hourly basis, fresh orders are issued down the line. Those orders will have a bearing on the way in which the rules of engagement are applied in specific circumstances. If a soldier is going to be investigated, and perhaps prosecuted, for an operational offence, it is vital that the investigation authorities and the prosecuting authorities know everything that there is to know about the way in which the rules of engagement were interpreted by the commanders in that unit in those particular circumstances. If I am right about that, it would be deeply unfair to the soldiers who are under investigation not to have, freely available to their case, as accurate an account as possible about the way in which these orders were given. Who else but the commanding officer can provide that evidence—and his subordinate officers? So I entirely endorse everything that all noble and gallant Lords have said about the importance of engaging the commanding officer, intimately, in the whole process of investigation by the prosecution.
	The noble and gallant Lord, Lord Boyce, went into this matter in more detail than any other noble and gallant Lord, but all noble and gallant Lords dealt with it impressively. The noble and gallant Lord, Lord Boyce, referred, in terms, to the operational context in which the offence occurred to underline how important the engagement of the commanding officer is in the whole prosecutorial process. I prefer the solution offered by my noble friend Lord De Mauley that the commanding officer should be fundamentally responsible for all prosecutions but that it should be recognised that those of a certain seriousness would be passed up the line by him. That is the best solution. But whichever solution we chose, it is vital that the commanding officer's role is factored in, I repeat, intimately, at every stage.
	The noble Viscount, Lord Slim, said that if he were an Attorney-General he would want his DSP to have military experience. If I may respectfully say so, of the many ways in which the noble and gallant Lords and noble Lords have formulated their support for the DSP having military experience, the way in which the noble Viscount expressed it was the most penetrating. There are very few politicians nowadays in another place and sadly, even in your Lordships' House, apart from those who have spoken today, who have the kind of military experience that is required if a mature decision about prosecution is to be made. So, a fortiori, if the supervisor has no military experience, it is very important that the senior member of the prosecuting authority has. That is another amendment that we shall table in Committee.
	The noble Lord, Lord Ramsbotham, is not it in his place, but I endorse two matters that he raised, among a number of others. First, he said that the Army needs to reinstate the position of director of Army publicity. It seems ludicrous to get rid of the role of military officers in this sphere and to fill it with civilians. It would certainly not cost more if the role were played by the military and it would also give those who serve more confidence; and, to use the words of the noble Lord, it would be the best way in which to protect and project the image of the Armed Forces. I also respectfully agree with his observation, which I think is shared by most noble and gallant Lords and noble Lords, that apart from the independent judge, the members of the court martial tribunal for army matters should all be from the Army.
	The noble Baroness, Lady Dean, made a very important point about secondary legislation when she said that we do not know enough about what will be in it. She was right in saying that we would like to see either in Committee or on Report drafts of the more important regulations, which will enable us to inform ourselves about the more important aspects of matters to which at the moment we are totally blind.
	One issue that I had not thought about before today's debate, but which we should think about in Committee, concerns the composition of tribunals. I refer to the composition not in terms of from which branch of the services members come but of the number of members of the tribunal and who selects them. As I understand it at the moment, they are selected by the court administrative officer. The noble Lord, Lord Thomas of Gresford, will be particularly helpful when reflecting on this issue in Committee because he has great experience in this kind of litigation.
	In particular, I believe that we should think about majority decisions. Is it right, given the fact that in a jury trial, if the majority is less than 10 to two, there is no conviction, that in a court martial a conviction can be obtained by four to three, three to two or five to four? That does not sound right to me. I should have thought that one should have a larger majority to meet the requirements of the human rights convention, to which the noble Lord, Lord Borrie, referred on so many occasions. It is appropriate that we should address the issue. The question of majorities in a jury trial goes to the root of what a jury trial is about. Should it not go to the root of court martial trials as well? I do not have any preconceptions about this, but I feel that this is an issue that your Lordships should confront. I should have thought that a majority of four to three or five to four was far too narrow; that you needed a much more convincing majority to convict in front of a military tribunal. That is a matter to which very few of us have given much thought, and we should think about it between now and Committee.
	Having said all this, I congratulate the Minister on having delivered the Bill in the condition that he has delivered it to your Lordships' House. This immense document has obviously involved a huge amount of work and I am in absolutely no doubt that it has been informed by the Minister's sincerity.

Lord Drayson: My Lords, we have had an excellent debate with contributions of the very highest quality. I have listened carefully to them and to all that has been said this afternoon. I will further reflect deeply on the contributions.
	I am very grateful for the very constructive tone of the debate, reflecting as I think it does the intention of the whole House to create the best Bill we can, to provide the clarity and the fairness that have been described and that our Armed Forces deserve. I have heard this afternoon a number of interesting new ideas for improvement, which we will consider carefully. I will now attempt at high speed, if I may, to respond to the many points that have been made. I am grateful to my excellent Bill team for the support that they have given me in this.
	Before I go into the detail, however, I should like to respond immediately to the points made by the noble Lord, Lord Kingsland, and in particular by the noble Lord, Lord De Mauley, about the absolutely central role of the commanding officer and the importance of ensuring that nothing we do in the Bill undermines the chain of command. That is central to what the team working on the Bill seeks to achieve. The noble Lord, Lord Kingsland, spoke of the commanding officer being "intimately involved" in this process—a useful phrase—and of the importance of the operational context being brought to bear throughout the process. We believe that we are bringing forward a Bill that significantly strengthens that process in a number of regards.
	The noble Lord, Lord Thomas of Gresford, said that he felt that the independent complaints commissioner had insufficient powers. I do not agree. The commissioner would have statutory powers to receive a complaint or allegation from a service person. He would receive a report on the outcome. He reports and has direct access to Ministers and will publish an annual report on the outcome. Those are not insignificant powers. The noble Lord, Lord Garden, asked whether we have had a response from Nicholas Blake QC to our government response to his excellent review. We have, and he published it on his website last night. In it he particularly welcomes the decision to create a service complaints commissioner with powers of access to the Minister directly to raise issues of concern as well as to report annually, as I said. I think that he commented quite positively on the progress that the Government made in their response to his review.
	The noble Lord, Lord Astor of Hever, asked why the commissioner is not embodied within the military system and why it is in the criminal justice Bill. I believe that the noble Lord has drawn together two separate points, the first on the inspection of the military justice system—the police and prosecution and so on. Where we propose to make arrangements with the new combined inspectorate proposed under the Police and Justice Bill, we will agree terms for those inspections with the new inspectorate and that will provide professional external assurance of our institutions. Secondly, on oversight of the military complaints system, we propose a service complaints commissioner who will be independent of the chain of command but report to defence Ministers. He will therefore be part of the military complaints system and have a statutory role to play within it.
	The noble Lord, Lord Thomas of Gresford, raised the issue of courts martial not being involved in the prosecution of civilian offences. I do not agree with him on this. A criminal offence can have significant disciplinary implications. For example, a soldier who steals from a colleague is as much a disciplinary matter as a criminal matter. Moreover, if a serviceman commits a criminal offence overseas and cannot be tried by military court, he is at risk of prosecution in a local criminal justice system and that could be very objectionable to us. Or the offender could escape justice entirely, which would not be acceptable to us or to the Armed Forces.
	Many noble Lords, and a number of noble and gallant Lords, have raised significant concerns about delays. That was the central part of my opening statement. We share that concern and have taken considerable trouble to consider how we can make improvements. I note the interesting suggestion made by the noble Lord, Lord Astor, on a time limit. I look forward to seeing the terms of the amendment. I make one point that I think we should reflect on. Experience shows us that, when there is pressure to bring a prosecution quickly, that can make it more likely that an unfair prosecution will result. We absolutely agree, however, that this system must be made as efficient as possible, and we have made important changes in the Bill to do that. I have specifically mentioned two changes, the first of which is the requirement for commanding officers to promptly bring in the service police in serious cases. Secondly and more importantly, the Bill allows the service police in serious cases to go directly to the prosecuting authority for a decision on the charge. At the moment, the police must go first to the commanding officer with a charge; then the commanding officer refers the case to the higher authority for further consideration; then it refers the case on. So we believe that this will provide a faster process, which is important.
	A number of noble Lords have commented on the structure of courts martial and whether persons should be tried by members of their own service. I note in particular the deep experience of noble and gallant Lords on this matter. We have heard from a number of them—the noble and gallant Lord, Lord Boyce, in particular. I commented on this in my opening statement, but I am happy to give further reassurance and repeat that we expect that, in the main, service personnel will be tried by courts comprising members of their own service. The noble and gallant Lord, Lord Bramall, asked whether, where it was clear that a shooting was lawful, the Bill requires a police investigation. I hope that the Bill is clear on this point. In a case where a shooting is clearly lawful, there will be no requirement for a police investigation. That requirement will arise if allegations or circumstances would indicate to a reasonable person that one of the serious offences listed in the Bill may have been committed.
	A central area of the debate this afternoon has been the role of the Director of Service Prosecutions. The noble and learned Lord, Lord Mayhew, raised this, and my noble friend Lady Dean reflected on the concerns that she had. A number of noble and gallant Lords also raised it, and I know that there is real concern about this area. Some noble Lords have asked for the Bill to require that the person appointed to be the DSP should have service experience, be a serving officer or have uniformed service experience. As many noble Lords are aware, one difficulty in putting this in the Bill is in defining what we mean by "service experience". Nevertheless, my right honourable friend the Secretary of State, in commenting on this, has expressed our view of the deep importance of service experience in this area. Overarching that is the need to make sure that we get absolutely the best person for the job. We believe that the qualifications of candidates would be a much better way of narrowing down what sort of experience we are talking about. We feel that this would be achieved most effectively through the selection process rather than in primary legislation. The Select Committee in the other place recognised that it would be difficult to put this in the Bill.
	To reflect a little longer on the question of whether the individual should have uniformed service experience, while we believe that a long and distinguished uniformed and legal career might provide an ideal Director of Service Prosecutions, we would not want a short career in uniform, perhaps at a junior level and with no operational experience, to give a candidate an advantage over someone better qualified in other respects, which could prevent us from getting the best man for the job. The noble and learned Lord, Lord Mayhew, raised the point relating to legal officers—

Lord Campbell of Alloway: My Lords, will the noble Lord explain the parameters? Are we in a position rather like the one in which the Prime Minister can say that anyone is to be Lord Chancellor, unless we elect our own? There are no parameters. Is that what we are dealing with here? Or are there to be some parameters?

Lord Drayson: My Lords, I am grateful to the noble Lord. There absolutely are parameters. Our difficulty is in finding the best way to define this and to give comfort to people that a service context will be provided to the prosecuting authority. We will listen to the points that have been made this afternoon, because this is a difficult area. All our Army Legal Services officers have operational experience. All Army Legal Services officers undergo at least three months' attachment with a "teeth arms" unit, and many serve with those units on operations in Afghanistan and Iraq. Serving lawyers may indeed fill the post of the Director of Service Prosecutions; they are not excluded. We want simply to ensure that the director is the best person for the job. That could be, for example, a recently retired officer, or it could be a barrister who has served in the Territorial Army.
	The noble Lord, Lord Thomas of Gresford, raised further points relating to the prosecution of civilians under the Bill—in particular, the Martin case. Service jurisdiction operates over two main groups of civilians outside the United Kingdom: first, over members of service families; and, secondly, over civil servants and contractors working with the services, especially on operations. That is an important aspect of the way in which we work in the current environment. Having a service jurisdiction does two things: first, it ensures that crimes committed by such civilians, whether against service personnel or local people, are dealt with; and, secondly, it ensures that they are dealt with by an ECHR-compliant system. We must bear in mind the fact that such systems are not always available in countries where our forces are operating. At the same time, the Bill facilitates the wider use abroad of the service civilian court, which has powers equivalent to those of magistrates' courts in England and Wales.
	The noble Lord, Lord Roper, and the noble and gallant Lord, Lord Boyce, spoke of the challenge posed by the implementation timetable of the Bill. That is a good point, of which we are very much aware. We aim to implement the Bill by the end of 2008; it is a large undertaking and we want to avoid the two extremes of trickling change over two years and making a single change so great that it is unmanageable. We are looking carefully at planning the implementation process and the matter is at the front and centre of our concerns.
	The noble and gallant Lord, Lord Vincent, asked who assesses the performance of the prosecuting authority. The service prosecuting authorities are independent of the chain of command and MoD Ministers. Regarding the new prosecuting authority, we announced yesterday that we will look to the extension of the role of the inspectorate that is under consideration in the Police and Justice Bill before your Lordships' House.
	My noble friend Lady Dean asked how commanding officers will be kept in the loop. The regulations under the Bill will require the service police to keep the commanding officer informed at specific times. That already happens. They will inform the commanding officer when a case is passed to the Director of Service Prosecutions, but, crucially, the commanding officer will be able to pass any information that he or she thinks is relevant to the offence, including any operational context, to the director before any charge is considered. This is a new and important improvement.
	Further, what other proposals are there with regard to notifying commanding officers of the conduct of investigations in ensuring that the commanding officer can provide that relevant information? We need to recognise that, if there are allegations that a soldier has acted outside the law, the service police and prosecuting authorities will seek to take into account the operational context in which the incident occurred. The commanding officer will be central to that; he needs to be an intimate part of the process.
	The noble Lord, Lord Astor of Hever, said that he believed that some of our service personnel are afraid to open fire, and he referred to a survey conducted among the 7th Armoured Brigade. That is not a view that is shared by operational commanders and the Land Warfare Centre, which is responsible for rules of engagement training. I can do no better than to quote Brigadier Lorimer, who ordered the successful rescue of two soldiers held in an Iraqi police station. He said that his men knew that they could,
	"take a life to save a life".
	The shooting investigation policy now in place in Iraq allows commanding officers to decide when their soldiers should be investigated by service police and has their strong support. The provisions in the Bill are consistent with that. Perhaps the most important point is that no prosecutions have arisen from firefights.
	The noble Viscount, Lord Slim, very effectively described his concerns regarding the rules of engagement. I assure him that mission-specific training for personnel deployed on operations takes full account of their mission and the threat that they face. That is kept under review to ensure that the personnel have the confidence to use legal force when required. I would be happy to provide a separate briefing to those Members of the House who would be interested in spending more time getting to understand the modern process for rules of engagement.
	The noble Lord, Lord Campbell of Alloway, raised the issues of the maintenance of discipline being the priority in sentencing and of sentencing taking into account operational stress factors. A number of matters would be relevant to sentencing and these have been set out in Clause 236, which includes the maintenance of discipline, as well as the punishment of offenders, the protection of the public and so forth. The military context generally, including operational stresses, will be a matter that can be raised in mitigation. Where relevant, they will be taken into account by courts.
	The concern about the role of commanding officers and, in detail, the position of the commanding officer when police investigate Schedule 2 and prescribed offences has been raised by a number of noble Lords. We will provide in the regulations that the police must inform the commanding officer of the investigations—in a moment, I will come on to the process of sharing with the House regulations in draft. These regulations will also provide that the commanding officer may provide information to the police and the prosecuting authority before any decision is taken on whether to charge. It is important that we have an opportunity for the House to review these regulations as part of the progress of the Bill. We recognise the central importance of that.
	My noble friend Lord Dubs raised the difficult issue of pardons for First World War soldiers. I remember this being raised by my noble friend as an oral Question and I appreciate the strong feeling in the House on this matter, which I have communicated to the department and to my right honourable friend the Secretary of State. In the light of the case of Private Harry Farr and the important issues that arise from this area of policy, my right honourable friend the Secretary of State is considering the subject as a matter of priority. He has asked officials to make the history of past policy decisions available to him. There is clearly a link between our response to the Irish Government's report and the outcome of the case of Private Farr. Until the outcome of the case is known, and has been considered and discussed with the Irish Government, no final response will be made to the Irish Government on their report. However, my right honourable friend has asked me to inform the House that he is considering all the options and is aware of the strong feelings of the House on this matter.
	The noble and gallant Lord, Lord Inge, the noble Viscount, Lord Slim, and the noble and gallant Lord, Lord Boyce, raised the issue of the abolition of review, and particularly the point that the Army were not happy about that. I hope that I dealt with this in my opening speech. I know that some in the services regret the abolition of the review, but we must recognise that the courts martial are compliant courts. We do not need and should not have non-judicial interference in their decisions. The review involves no hearing and no opportunity for the victim—who could be a serviceman or servicewoman—to be heard.

Lord Boyce: My Lords, I apologise for interrupting. My reference was to the slip rule, the investigation of the slip rule and the resentencing, rather than to the review of the court martial.

Lord Drayson: My Lords, I am grateful to the noble and gallant Lord. We have accepted that we should not abolish the review without providing for a slip rule, enabling us to respond to sentencing errors. This approach has the full support of the Judge Advocate General. The noble and gallant Lord asked whether service court members would be involved. The answer is that they will be.
	The noble and gallant Lord also referred to the location of court centres. He felt that they should not be restricted to three new centres, and I have considerable sympathy with his concern. The military criminal justice system must be transportable so as to operate near where the service is required. That must include locations where there are significant concentrations of service personnel—for example, at naval bases. There is a strong service case, in particular, for Scotland and the south-west.
	My noble friend Lord Borrie and the noble Lord, Lord Thomas of Gresford, said that courts martial should not be decided by a simple majority. This is a difficult area, in which we have considered a number of views. We certainly agree with the view of the Judge Advocate General that, if possible, courts martial should decide cases unanimously. Directions are already given by judge advocates to that effect, but if the possibility of a decision by a simple majority is precluded, it will mean that in such cases, whether the majority is for acquittal or conviction, there will have to be a new trial. This was an important consideration in our conclusions. The approach should be to seek unanimity, although a decision can be made by simple majority. I might add that magistrates' courts, Scottish juries and a number of European civilian and military jurisdictions work on the basis of a simple majority.
	A number of noble Lords raised concerns about desertion. There may be some confusion about two changes that we are making to this offence. First, we are reducing the circumstances in which a person can be guilty of the offence of desertion, and, secondly, we are reducing the maximum punishment for desertion in certain circumstances. My noble friend Lady Dean asked why, under the Bill, we are keeping the life sentence for desertion. We need to recognise that if a serviceman or woman were to desert from their unit in an operational situation and, through that person's absence, the unit lost an essential skill, that could lead to the unit being far more vulnerable, which, in turn, could lead to a significant loss of life. In those extreme circumstances, a court should have an unfettered discretion to apply the required sentence. Indeed, we believe that a maximum sentence in those circumstances acts as an effective deterrent to prevent such people from deserting their post.
	My noble friend Lord Judd raised a concern about a possible increase in the number of deserters in Iraq. I am not aware of the figures to which he referred. The information that I have suggests that there have been no reports of soldiers on operational tour in Iraq or Afghanistan going absent without leave from January 2003 to May 2006. However, that excludes individuals who may have gone absent without leave part-way through their tour. I have recently written to the noble Lord, Lord Garden, stating that in the Royal Navy no one has been charged with the offence of desertion since 1998. Figures for the Royal Air Force show that one person was charged with the offence in 2002 and a further person in 2005. In the Army, the numbers of personnel charged with the offence were: in 2001, three; in 2002, six; in 2003, three; in 2004; three; and, in 2005, five.
	We believe that the definition of "desertion" is very clear. It is closely based on the definition of "active service" in the existing legislation. But the existing definition includes a number of complexities, such as the ability of local commanders to declare that active service exists.
	The noble and gallant Lord, Lord Boyce, asked what role the Attorney-General would play in the appointment of the Director of Service Prosecutions. My honourable friend, the then Under-Secretary of State in another place, said during the Select Committee that,
	"it is inconceivable that the Secretary of State might recommend an appointment",
	to Her Majesty,
	"without consulting the Attorney-General".
	I do not believe that I can add anything to that.
	My noble friend Lord Borrie asked what the prescribed circumstances in Clause 114 were, where the offence must be notified to the service police and referred direct to the Director of Service Prosecutions. Examples are systematic bullying and an apparently minor offence that appears to have been committed as part of a pattern of domestic violence.
	The noble Viscount, Lord Slim, commented on the report of the Select Committee. We welcomed the report of the Select Committee and the support that it gives to the Bill in a large number of areas. There is absolutely no question of the report being consigned to a shelf, and I shall be happy to respond to the individual points as we continue our deliberations on the Bill and to provide an update on the implementation of those points as we progress with this project.
	As I said earlier, this is a good Bill. Above all, it will bring greater fairness and clarity and, I believe, operational effectiveness to our Armed Forces. I am greatly encouraged by the welcome that it has had today in your Lordships' House. I look forward to the next stage, and to the exchanges that Committee stage will undoubtedly bring. I beg to move.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

Army, Air Force and Naval Discipline Acts (Continuation) Order 2006

Lord Drayson: rose to move, That the draft order laid before the House on 27 April be approved [25th Report from the Joint Committee].

Lord Drayson: My Lords, I shall say a few words in support of the order. We have had a good debate this afternoon on the broad issues of the Armed Forces Bill. However, although it is less significant than the Bill, the order is crucially important.
	As noble Lords will know, in most years Parliament is asked to consider an order of this kind as part of the process by which the service discipline Acts are kept in force. The Armed Forces Acts form the main part of that process. They are passed every five years to allow the individual service discipline Acts to continue in force for a maximum of five years, subject to an annual Order in Council in each of the intervening years.
	The service discipline Acts provide the statutory basis for discipline in our Armed Forces. The order before us is critical to ensuring that those Acts remain in force. The most recent of these, the Armed Forces Act 2001, extended the provisions of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 by a further five years. But that extension was subject to both Houses approving an order such as the one before us in each intervening year. The key difference this year is that we are reaching the end of this particular cycle. The current order continues the service discipline Acts in force until December 2006, beyond which they can be renewed only by primary legislation.
	Having had its Second Reading today, the Government are confident that the Armed Forces Bill will by then have received Royal Assent. The Armed Forces Act 2006, as it will then be known, will provide for the arrangement to continue under that legislation.
	I shall make one more observation about the order. The Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. The order that we are considering today is a brief document that raises convention issues only in that it maintains in force three Acts that, as they have been amended over the years, reflect convention rights. It is no secret that, when it was introduced, the Armed Forces Bill did not require the five-yearly legislation to be renewed by Order in Council in each of the intervening years.
	It is true that we felt that there was no longer a need for parliamentary control to be exercised quite so closely in the 21st century. Indeed, this would have been the last such debate. In the event, we have heard Parliament's voice loud and clear. The Government amended the Bill in the other place to continue with annual renewal by Order in Council, not only of the existing Acts but also of the Armed Forces Bill, once brought into force. For some years now, these debates have provided an opportunity to give the House a progress report on the forthcoming Armed Forces Bill. There may be a few noble Lords who thought they would never see the Bill introduced to Parliament. I am delighted that we have proved them wrong. In future, I expect that these debates will provide a useful opportunity to keep the House informed of progress on the Bill's implementation, and I undertake to do that.
	In conclusion, I look forward to providing those updates and to discussing the renewal of a single system of service law for many years to come. I beg to move.
	Moved, That the draft order laid before the House on 27 April be approved [25th Report from the Joint Committee].—(Lord Drayson.)

Lord Astor of Hever: My Lords, I am grateful to the Minister for explaining this order. Noble Lords may be aware that when the present Armed Forces Bill was introduced in the other place some months ago, it left out the provision for annual parliamentary renewal that had been a feature of the preceding legislation, dating back as far as the Bill of Rights 1689, which the new Bill was drafted to replace. That omission attracted serious objections, not only from constitutionalists and traditionalists, but also from all in Parliament and the Armed Forces who are concerned about the central tenet of civil-military relations; namely, that the Armed Forces are not autonomous but are ultimately subject to civil authority and parliamentary control. This annual order entrenches that concept, and it is important that we should hold this brief debate tonight to welcome the fact that the Government have repented the omission and have restored this provision to its proper fundamental place in the Bill.

Lord Garden: My Lords, as the hour is late, I shall speak briefly. I support what the noble Lord, Lord Astor of Hever, said. It is sensible that we shall continue to look at the progress of the Armed Forces Bill every year. That will give us a chance to raise issues that need to be considered. However, we have probably exhausted discussion on the Armed Forces for today.

Lord Drayson: My Lords, I am grateful for the support that noble Lords have given the order.

On Question, Motion agreed to.

Courts-Martial (Prosecution Appeals) Order 2006

Lord Drayson: rose to move, That the draft order laid before the House on 22 May be approved [28th Report from the Joint Committee].

Lord Drayson: My Lords, this order will be made under the Armed Forces Act 2001 and will amend the Courts-Martial Appeals Act 1968, which requires that it will follow the affirmative procedure, needing approval by both Houses.
	The Criminal Justice Act 2003 introduced the right of the prosecution to appeal against terminating rulings by a Crown Court judge. That was brought into force in the civilian system last year. We believe that it is right and sensible that the same provisions should apply to the Armed Forces and that the service prosecuting authorities should be able to appeal against similar rulings by judge advocates at courts martial.
	However, the relevant part of the 2003 Act did not make specific provision for that right of appeal to apply to the services. The Armed Forces Act 2001 enables provisions to be made equivalent to those contained in any future criminal justice legislation, and it is intended to use this order-making power to make equivalent provision for the services with regard to prosecution appeals.
	As noble Lords will know, terminating rulings by a judge take the form of a stay of proceedings, a ruling of "no case to answer" or another ruling that is fatal to the prosecution case. That means that a judge's ruling stops the case so that it is terminated. It proceeds no further, and the accused is no longer subject to prosecution. For example, a judge may decide to stay the proceedings, which has the effect of stopping the case, or he could find that there has been an abuse of process such that the prosecution cannot be allowed to proceed. He could also find that there is no case to answer against the accused, which would generally be because of inherent weakness of the evidence against him. Approval of this order will mean that the service prosecuting authorities will be able to instigate appeals against terminating rulings by judge advocates at court martial through the Courts-Martial Appeal Court.
	While this right of appeal will apply to all courts martial, it is likely that such appeals will be rare as their use will be dependent on a terminating ruling by a judge advocate. However, it is right and proper that this provision be accessible within the military justice system as it is in the civilian courts. I commend the draft order to the House. I beg to move.
	Moved, That the draft order laid before the House on 22 May be approved [28th Report from the Joint Committee].—(Lord Drayson.)

Lord Astor of Hever: My Lords, once again, I thank the Minister for explaining this large and detailed document. My only question to him is: was any thought given to rolling the order into the Armed Forces Bill to which we have just given a Second Reading? If so, why was this not done? If such consideration was not given, why not?

Lord Garden: My Lords, the questions which were asked by the noble Lord, Lord Astor of Hever, were pertinent, but I have no problems with the order as it stands.

Lord Drayson: My Lords, I am grateful to noble Lords for their support for the order. If I may, I will write to the noble Lord to give him a full and detailed answer about the structure of the order in respect of the Bill.

On Question, Motion agreed to.

Immigration (Provision of Physical Data) Regulations 2006

Baroness Scotland of Asthal: rose to move, That the draft regulations laid before the House on 2 May be approved [26th Report from the Joint Committee].

Baroness Scotland of Asthal: My Lords, the regulations enable an authorised person to require any person who applies for entry clearance to provide a record of his fingerprints and a photograph of his face. The regulations also enable an authorised person to require any person who is in possession of a 1951 refugee convention travel document that is endorsed with an entry clearance and who seeks leave to enter the United Kingdom to provide a record of his fingerprints and a photograph of his face. In practice, an authorised person will be an immigration officer or entry clearance officer.
	The regulations are made under Section 126 of the Nationality, Immigration and Asylum Act 2002. Section 126 provides that the Secretary of State may by regulations require an immigration application to be accompanied by specified information about the external characteristics of the applicant or enable an authorised person to require an applicant to provide such information.
	I am conscious that the time is now 9.20. I would ordinarily have fully explained the regulations. I know that they were greeted with assent in the other place. If noble Lords approve, I do not intend to say anything more because of the lateness of the hour. However, I am happy to expand on the regulations more fully if any noble Lord indicates that it would be helpful.
	As no such indication has been given, I beg to move.
	Moved, That the draft regulations laid before the House on 2 May be approved [26th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Lord Luke: My Lords, I reassure the noble Baroness that we on this side of the House thoroughly approve the regulations.

Baroness Harris of Richmond: My Lords, we on these Benches thank the Minister. She has explained the regulations in as much detail as is necessary. They have been designed to tackle abuse of the immigration system. An authorised person will require an applicant to provide a fingerprint and a photograph. We would support measures to ensure that immigration rules are not evaded, but great care needs to be exercised in ensuring that a large number of law-abiding travellers are treated with dignity and respect. That discretion is to be exercised where appropriate.
	We would ask the Minister to maintain statistical records to ensure that the system is properly monitored and that it is not adversely used against travellers from certain countries.
	We believe that that is very important. We would like absolute assurance from the noble Baroness that the technology will be available in British posts abroad to undertake this. Those posts should be trained so as to ensure that proper cultural sensitivity is displayed, particularly when fingerprinting or photographing women who apply for entry clearance.

Baroness Scotland of Asthal: My Lords, I thank both noble Lords for their helpful and constructive approach. I assure the noble Baroness that I very much understand her concerns about these matters, which we share. I undertake to write to her fully in response, bearing in mind the shortness of this hour. I assure her that she needs fear for nothing because we are in agreement in terms of approach.

On Question, Motion agreed to.

Serious Organised Crime and Police Act 2005 (Amendment of Section 61(1)) Order 2006

Baroness Scotland of Asthal: rose to move, That the draft order laid before the House on 3 May be approved [26th Report from the Joint Committee].

Baroness Scotland of Asthal: My Lords, your Lordships will remember that when we discussed the Serious Organised Crime Bill, my noble friend Lady Whitaker suggested that the list of offences should also include the offence of bribery. This approach enjoyed widespread support across the House. The amendment was technically deficient, but I promised that we would come back at the earliest possible opportunity. Here we are. I beg to move.
	Moved, That the draft order laid before the House on 3 May be approved [26th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Lord Luke: My Lords, I should like to assure the noble Baroness that on this side of the House we approve.

Baroness Harris of Richmond: My Lords, we are very pleased that this has now been taken on board. Let us hope that it will further help prosecutors to eradicate bribery and corruption in the prosecutions that they undertake. These Benches support the order.

Baroness Scotland of Asthal: My Lords, I commend both noble Lords for their wonderful and most welcome approval of this order.

On Question, Motion agreed to.

Intelligence and Security Services

Lord Hamilton of Epsom: rose to ask Her Majesty's Government what plans they have for reform of the intelligence and security services.
	My Lords, I am very grateful for the opportunity to ask this Question. I have informed all contributors who are named to attend the debate, but I notice that two of them are not here. Perhaps I should speak rather slowly of the intentions of what I will say: the Minister has had a note of what I intend to put forward. The effectiveness of the intelligence and security services is absolutely vital—never more so than today—to our national survival.
	I take the view that if it is not bust, you should not fix it. Unfortunately, I do not think that we can say that of our security and intelligence services. I always feel that the acid test for the Secret Intelligence Service is whether it can provide good information when we are on the verge of going to war. If we take the Falklands campaign, the lack of intelligence at that stage was a terrible failure. It was made worse because the Secret Intelligence Service had closed its station in Buenos Aires despite the fact that during the time when the late Lord Callaghan was Prime Minister there had been a threatened invasion of the Falklands. He rather skilfully said, "They should not do that. There is a submarine down there". The invasion was called off. History does not and should not relate whether there was a submarine in the south Atlantic at that stage, but it was a very effective intervention.
	I always remember putting that point when I was on the Intelligence and Security Committee to Sir David Spedding, who was the director of the Secret Intelligence Service. I asked why the extraordinary decision was made to close our station in Buenos Aires. He said that it was a ministerial decision. As those of us who have been and are Ministers know, ministerial decisions are normally taken on advice given. If the advice given at that time had been that we should close our station in Buenos Aires and that the Falklands might be invaded by the biggest armada that has been seen for a very long time not long afterwards, I suspect that a different decision would have been taken.
	I am afraid that the Gulf War was not a very glorious moment either. Your Lordships will remember that Saddam Hussein had several armoured divisions poised outside Kuwait. The key question was whether he would invade. The answer was that we had not the first idea. I think our friends in Saudi Arabia were contacted to try to get in touch with Saddam Hussein and find out whether he was going to invade. He reassured the Saudis that he had no intention whatever of doing so—and invaded shortly afterwards. After that, you would have thought that we would have improved our intelligence in Iraq, but unfortunately weapons of mass destruction proved to be virtually non-existent, and I am afraid that the Iraq war was another dismal failure.
	I personally feel that the Soviet threat was exaggerated for a very long time, too, because we used satellite imagery to count the number of tanks and aircraft that the Soviets left lying in rows on their airfields, but we never really knew what the capability of all that equipment was. Indeed, I do not think we were ever given any idea before the Wall came down of the growing gap between the technological capability of the West and that of the Soviet Union.
	I think the security services had a much better run until recently—certainly they had some significant successes in dealing with Irish terrorism. It is important to cast our minds back to the great debate that took place on who should have responsibility for Irish terrorism in Great Britain. It was an argument between Special Branch and the Security Service but, to me, it did not much matter which had prime responsibility so long as one or the other did. Indeed, the gist of what I shall be saying later is that we must have much more clearly defined responsibility in these kinds of exercises.
	The Islamic terrorism which is now very much in the news is a totally different matter and I suspect that the Security Service will be involved in an extremely steep learning curve as it tries to grapple with a totally new threat. It is regrettable that even after 9/11 nothing was really done to gear up the Security Service in the way that has now happened. It is sad that we assumed there would not be a terrorist attack on London until there actually was one, and then moved after that. Valuable time was wasted.
	I believe that the agencies need radical overhaul. The reform needs to recognise that the historical explanations for the division between having a Secret Intelligence Service that operates abroad and a Security Service that operates at home have ceased to be relevant at all. We are now in a global marketplace and, I am afraid, crime and terrorism do not recognise international borders. It seems quite likely—although it has not been confirmed, I know—that the July bombings were actually planned abroad. Obviously the appalling trade in drugs happens in foreign parts and the drugs end up being sold on the streets of Britain.
	We need to reorganise and merge our Secret Intelligence Service and our Security Service to recognise that there is now a seamless road running from foreign countries to here. Personnel who are at the moment working separately need to work under the same organisation so that we have a very clear idea who is responsible for the pursuit of terrorists. A terrorism unit should be set up using people who have previously been working in both the Secret Intelligence Service and the Security Service to combat this great problem.
	Espionage and counter-espionage have always been merged to some degree, and I do not quite see why that should not come under a single agency as well. I would like to see further moves made to deal with drugs and organised crime by a totally separate organisation modelled on the Drug Enforcement Agency in the United States of America.
	This would take the two agencies away from the Foreign Secretary and the Home Secretary, who are, in anybody's language, big beasts in the Cabinet and might object to having those wrenched away from them. On the other hand, I cannot believe that the Foreign Secretary spends very much of his time actually tasking the Secret Intelligence Service, and to suggest that the Home Secretary spends time tasking the Security Service is almost laughable, when we are told every time we pick up a newspaper that he is attempting to manage a vast and complex department dealing with all sorts of incredibly difficult political problems. We should recognise the reality that the main threat to the citizens of our country lies in the actions of terrorists. What we really need is a Cabinet Minister—a Secretary of State for homeland security—to take responsibility for the new intelligence agencies that would result from merging the Secret Intelligence Service and the Security Service.
	In the Ministry of Defence, we used to call it—and still do—asymmetric warfare. That is the problem that we face today. There is no conventional military threat to this country that is foreseeable. The old days of the threat of the Soviet Union and the evil empire have now gone. We are not at risk from conventional attack, but we certainly are at risk from terrorism in this country. It must be the prime responsibility of government to protect their citizens and give them the protection from threat that they deserve. We must combat terrorism by bringing our intelligence services into the 21st century and recognise that the priority of government is to protect their citizens.

Viscount Brookeborough: My Lords, I thank the noble Lord, Lord Hamilton, for introducing this topic at such an opportune time. It gives us a chance to discuss the changing security environment and how the intelligence and security services can best adapt to it. I wish to look at issues that concern us inside our land borders. I accept that they may be influenced or controlled by various people from the outside.
	Prior to the situation in Northern Ireland, intelligence and security services operated largely behind closed doors and the population was, to a great extent, unaware of what they got up to. Once in a while, a spy was uncovered or rumbled and every now and then some diplomats were expelled. But nothing much more than that happened—nothing as dramatic as James Bond films, with people being shot. However, the long term was being taken into account and there was never any great urgency over it. The threat from Russia or China was in the long term.
	However, Northern Ireland terrorism, with its international links, and the global terrorism of today have changed all that. There is now an urgency requiring urgency of intervention at times. Terrorism has changed from being something that people merely looked at and discussed to something where, under certain conditions, as we have seen recently, there is a certain urgency and where intervention has to be in the very short term.
	I should briefly declare an interest in that I have been involved to some extent in anti-terrorism or counter-terrorism in Northern Ireland for about 30 years, including the Policing Board. Years ago, MI5 and MI6 operated largely on their own. Today, we hope that they are part of an integrated, joined-up fight against terrorism and for the protection of our national security. We must be aware that the threat has changed. It is dramatically different. It has gone from the long term to the very short term, requiring immediate action. That is very important. I would like to look at two issues: first; the nature of intelligence produced by these agencies, and, secondly, what they do with it and how the executive arm—the police—can use it to deter terrorist incidents, or, if not deter them, to bring terrorists to justice.
	We no longer look at the intelligence and security services in isolation. The results of their work are felt widely in communities. We have seen this in the past few weeks, when, I believe, the country has begun to learn that it is the communities that matter and which we have to take care of.
	At this stage I give credit to the police and security services. During the Troubles in Northern Ireland, it was estimated that 90 per cent of all planned terrorist incidents never took place because of security force activity and intelligence. I am quite sure that something like that is the case here today and we are unaware of it—I accept that. What we have seen is but a small part of it. There have been many tremendous successes and I am not opening up a criticism of the security forces, but a support and a hope that we can all help bring them forward and modernise them, as already they are trying to do.
	Intelligence is often good enough to know what is about to happen. It often gives very precise information that must be acted on. For it to be acted upon, it has to be given to the police. Once the police, who are the executive arm, receive it, they are brought into operation. However, intelligence is often not evidence. This is the most important part—that the production of intelligence by the intelligence services is often in an unusable state. To give but one example, the inadmissibility of telephonic and radio intercept means it cannot be used. It is quite possible that such information may identify a target, a place and everything else. But having arrested, or stopped, the people who were to perpetrate an offence, unless there is any tangible evidence on hand at that moment, no further action can be taken. This is an important issue for the intelligence services. So charges, let alone convictions, cannot take place.
	In Northern Ireland we had many, I would say thousands, of cases where we knew—or thought we knew—who was responsible through intelligence. But we had no charges and, to be honest, we had no hope of getting those charges—hence, perhaps, the results that we are involved in now, in the peace process. There is one additional thing about intelligence gathering: the intelligence services often gain their intelligence from sources which ultimately can easily be discredited in court. It is inevitable that intelligence from such sources is gained from people who are involved in criminal or terrorism-related activity. These sources, should you get as far as taking the case to court, do not stand up in court. This is our problem. And if we do not produce and convict people involved in terrorism in this country, we will not have the backing of the communities from which they come. Exceptions to this were the Tube bombing cases, where not even the families were remotely aware that a member of their family may have been involved.
	The cultures of the police and security services are different. After all, the security services gather intelligence; they identify the threat and their job is to protect national security. The police should protect the people. But they gather evidence to charge and convict criminals who may sometimes be terrorists. The security services have got to learn to produce as much intelligence as possible in an evidential format of good quality for the police. They are the executive arm within this country. They are the people who have to bring the charges. The security services will have to become more evidence-orientated if we are to be successful. Consequently, they therefore have to become more accountable by the nature of the evidence.
	I suggest—and it has no doubt been suggested before—that we have to have a mechanism within the security agencies to carry out this function, or to help the security services produce things in the right way and follow it through. Perhaps there should be an inspectorate of cleared, vetted experts to drive this forward. It would obviously be confidential but the people would have confidence in it. There is a government committee of which the noble Lord, Lord King, was a member, although I am not sure of its correct name. I do not believe that it is that arm. We need something else to follow this through.
	More intelligence evidence must not only identify the threat but more often be of a quality required by the courts. That could mean changes in laws on admissibility of certain types of evidence in court. We have been through this 100 times, so I will not go through it again. I know the defence the Minister has for it. However, I still feel that we must go down this route at some stage because we must ultimately have convictions behind us if we are to maintain the support of our communities. I am not saying that I know more about this than anybody, but I come from a part of this nation which has benefited from community support. I know that efforts are being made at improvement, but someone must drive it forward.
	The Oversight Commissioner on policing in Northern Ireland brings out an extremely telling and powerful report every four or five months. As a member of the Northern Ireland Policing Board, I can tell noble Lords that that makes a serious impression not only on the policing board but on the police themselves. Noble Lords might find it worth while to look at that.
	The second issue is how the security services work with the police. I know that liaison is improving and I understand that the security services may be opening regional offices. However, in Northern Ireland the police still have primacy, until the Northern Ireland (Miscellaneous Provisions) Bill goes through. I am entirely for the change that will mean that the police lose primacy. However, until now, because the police had primacy and were ultimately the executive arm on the ground, along with the military, which supported them, they worked extremely closely with the security services. Some people may say that there were problems, and I know that there were, but overall, they worked together extremely closely. Everybody understood what the others were at, but that took 30 years.
	Great Britain is much larger, and the co-operation is good where it matters. One suspects that that happens in London, Birmingham, and various other places, but what is it like in small villages and towns? Special Branch officers around the country are very small in number. I am not arguing that their number should be enlarged, but I cannot quite see how, in small places away from London, they can fully understand the part that the security forces may play, should they have a problem in the area. Can the Minister reassure us that the community police officers, who are, after all, at the coal face, are aware of what to look out for, although I accept that that is incredibly difficult? How do they handle the sensitive intelligence that they will have to be aware of to carry out their functions?
	This is something entirely new which goes right down to the ground level. We cannot expect the security services to infiltrate those communities. It is not on for 100 reasons, the biggest being that we must not be guilty of spying on our own British communities. We must be aware of what is going on; that is extremely difficult when even the families of some of these people are unaware of what is going on. So it has to be handled delicately.
	Community policemen should act as eyes and ears but not as spies. Operations mounted on intelligence may be immediate and urgent. Are our police forces around the country competent enough to carry out these operations at a moment's notice? Operations happen at very short notice. There is immediate planning for operations, but not days and weeks— they happen overnight. Are our police forces capable in that respect? Do they, along with our security services, have the resources to instruct, train and gain experience together? It is no good doing the odd training exercise and, when it comes to the incident, calling up somebody who says, "I have only been in the job for three days". There has to be almost daily contact, as we found in Northern Ireland.
	I shall not read out the comments by the policing Oversight Commissioner, which I have here—that would take us until midnight—but pages 61, 62 and 63 are very relevant to our arguments about how the police should interact with the security services. I would suggest that such an operation as a policing Oversight Commissioner could be brought in to oversee our security services coming up to date and tackling the present problem.

Lord King of Bridgwater: My Lords, I congratulate my noble friend on introducing the debate, even though I do not congratulate him on the hour at which it is being achieved. He will receive from me first prize for consistency, because he and I served together on the Intelligence and Security Committee, and it is no secret that I am aware of his views on the need for co-ordination of the Security Service and the Secret Intelligence Service in their work. I would add to that the Special Branch, as the noble Viscount illustrated.
	The noble Viscount paid tribute to instances of intelligence failures or disappointments. The Falklands and the invasion of Kuwait were two illustrations where we did not have the quality of advanced intelligence and correctness of advice that one might have hoped for. I am not sure that changing the organisation would necessarily improve the situation, but having said that he went on to instance Northern Ireland, which as he knows I know fairly well, and to pay tribute to the quality of the intelligence. The noble Viscount, Lord Brookeborough—whom if I may say so is extremely well qualified to talk on these matters having not merely talked about but been part of the determined and robust response of the community in Northern Ireland to defeat terrorism—said that he thought that 90 per cent of possible terrorist incidents of one sort or another may have been prevented by effective intelligence and co-ordination of that kind. I do not think that that was the figure at the start. That was a figure that emerged progressively over the 30 years and more in which we developed a most effective counter-terrorism organisation and in which people in the different organisations began to trust each other and work together; they did not always do so effectively—one always noticed if there were changes and if new people came in there might have been a bit of a hiatus in confidence and maybe intelligence on those occasions. It might be very sensitive and come from sensitive sources and it might not always be exchanged in the way that one might hope to see, but it was entirely understandable that that happened.
	So we learned in Northern Ireland some of the lessons that needed to be learned. We now face a completely new situation. I was invited to comment on recent events, as were the Minister and others, and give my view on the quality of intelligence. It took some time in Northern Ireland to obtain confidence—this was true of the Special Branch and MI5 and others were involved, including the Army. One does not immediately establish whether someone who rushes up to one with a bit of exciting information, is a reliable source, a dependable person, doing it for the money or because he has a grudge against his next-door neighbour; these are difficult problems. It takes time to establish confidence and reliability, which is the challenge that we face at the present time. The potential arguments between the police and the Special Branch and the assistant commissioner and allegations that MI5 and others are at loggerheads about who is responsible are paralleled by some of the things that have happened in Northern Ireland: the difficulties in dealing with difficult situations when the enemy is there and there are problems by the forces of order in trying to combat them.
	However, I accept with my noble friend that we are dealing with a global threat. There is no question about that and we know that perfectly well from al-Qaeda training camps and the number who may have come from different cities in this country and gone for training and come back and are now present in our cities, that the previous demarcation that this is overseas and this is home does not make much sense. The challenge of how we address that is very real. But I have only one message, which needs to be understood by government and legislators. It is my experience that Ministers and government and Parliament never fully assess the price of change and the upheaval that is caused. If we start carrying through legislation that suggests major upheaval in the agencies at this moment, it will guarantee effective paralysis of agencies. Everybody working in them is human.
	My noble friend made a telling point about whether we focused too long on the Soviet threat, but the reality was that a large number of people in the SIS were trained Russian speakers—and, I hasten to add, in the Security Service, as well. Their whole life had been spent in this area; that is where there expertise was; they were not actually all rushing off to learn Arabic at whatever age they were. The inertia of that organisation is very real. The challenge of change means that the agencies need to start by recruiting a whole lot of people from backgrounds from which they have not recruited before.
	One thing that my committee encouraged, and which the Security Service said that it was doing, was to have a more open recruitment policy. It was tremendously fashionable—openness and transparency. The service advertised for new people and, if I remember rightly, 25,000 applied and 12 were appointed. That was the reality of having to deal with an entirely different situation. I pay tribute to the fact that the Government have poured extra funds into the Security Service in facing this threat, but we should not think that it will become immediately effective. The challenge of ensuring that we have made the right choices and of adapting the organisation to the situation is massive. It is an appalling argument—an ultimate conservative argument—to say, "Stop everything, let's stay as we are". You can't do that because obviously you have to adapt. But you have to weigh very carefully what changes you can make that will make sense and will be valuable.
	The real problem is that there is never a right time for that sort of change. This is particularly not the right time. We need instead to drive for the closest possible co-ordination of the Secret Intelligence Service, the Security Service, GCHQ and their linguists and all the qualities and capabilities that they have and Special Branch and police organisations and the structures for counter-terrorism.
	However, there is one area in which my noble friend had a very good point—the point about the Minister. I do not know whether the Minister is aware of this, but the Intelligence and Security Committee recommended a while back, when I had the honour to be its chairman—and it was the unanimous all-party view shared by a number of the Minister's noble friends who sit on the Labour Benches now—that there should be a single Minister who had responsibility, to whom the heads of the agencies answered. I do not know whether the Minister realises how close the present Government came to adopting that recommendation or whether she knows who the person was who thought that they would get that appointment. However, the organisation closed ranks and some of the disadvantages of that proposal and some of the lessons of the German experience were brought to bear, as it had not been entirely without difficulties, and the move was defeated at that time.
	Having been a Secretary of State for Defence and having seen the operation of the agencies and the workload of the Home Secretary and the Secretary of State for Foreign and Commonwealth Affairs and the Prime Minister, I know something of the reality of the idea that they are actually running the intelligence agencies and have a degree of ministerial control. Some of the Minister's predecessors in government were pretty jealous of the position that they held as Secretary of State and did not encourage Ministers of State to get too involved in these areas. Uniquely, the agencies did not have that close ministerial involvement that is so important.
	The reason it is important—as the Minister will know because she is taking a lot of the flak now—is that actions taken in some of these areas by agencies and by the police have acutely difficult political consequences that can blow up in one's face. That is why the combination of ministerial leadership and the agencies answering and being closely involved with a Minister who understands and is well informed and has some involvement is a pretty powerful argument. I support my noble friend in saying that this matter needs to be looked at again. I think that the Prime Minister's initial instincts before he got into No. 10 and was cornered may well be worth looking at again.

Lord Wallace of Saltaire: My Lords, I welcome this debate on a much under-scrutinised but delicate field. It is an area that Parliament ought to be allowed and encouraged to devote more attention to. However, I do not entirely agree with the sentiments expressed by the noble Lord, Lord Hamilton, for reasons that the noble Lord, Lord King, has also stressed. The National Health Service, after all, is suffering badly from having been reorganised three times in the past nine years, and the Government's response is to propose a fourth major reorganisation. The police are about to go through a major reorganisation in this country for reasons that are not unconnected with what we are discussing, including the weakness of Special Branch agencies in some of our smaller forces. The risk of that is that we may lose some of the invaluable local links that our current police forces have. In the pursuit of level 2 or level 3 crime, we may lose the level 1 problems. I am therefore sceptical, like the noble Lord, Lord King, about reorganisation as such.
	We all must recognise how much the security context has been transformed in the past 15 years. However, as I was listening to the opening speeches, I was thinking that some of these things are not entirely new. As a junior lecturer, I used to help to train the Lancashire police and I was also candidate for Manchester Moss Side, an area with a substantial Irish Catholic community, and certainly a number of terrorists within that community. We know that because a house blew up one night when its inhabitants were trying to assemble a bomb and had not quite got it in the right place; happily they succeeded in destroying the worst part of Manchester city centre some years later, enabling Manchester to be rebuilt in a rather better way. The Special Branch had to be involved not just at the local level but also in understanding who went between Manchester and Ireland and what the IRA's connections were with Gibraltar, Libya and other areas.
	We now have a very different problem in some ways with a different community. I found myself after the Iraq war addressing extremely large groups of people in the north of England interested in my party's policy on Iraq and on Kashmir and learnt a great deal about all the delicacies within that community in Leeds, Bradford, Pendle and elsewhere. For that, we need local knowledge and local partnerships; we need police more than security services, and not just the local police but other elements of the local community from which one has to build. Surely the lesson of where we are now is that we need not just a national effort but a local and an international effort.
	I say to the noble Lord, Lord Hamilton, that my understanding is that the linkages between transnational crime, dealing in drugs, people-smuggling and terrorist activity do not allow for any neat cut-off points. Terrorism is funded by smuggling drugs. People are smuggled for all sorts of reasons, not just the trafficking of women. That suggests to me again that one needs co-ordination between a whole range of different services. That is the most important aspect.
	The problem is not unique to the United Kingdom; it exists in the United States, France, Germany and elsewhere. The experience of the United States is not entirely happy. An American friend of mine was appointed as a White House fellow to deal with the drugs issue some years ago. I remember him saying that one of his discoveries was that, when he arrived at the White House he thought that there were eight agencies dealing with the international problem of drugs in the United States, but by the time that he left he knew that there were 32. The United States Government, with or without the Department of Homeland Security, have their own built-in inefficiencies.
	We have adapted quite well over the past 15 years to the change in our security context. I have certainly been impressed by the way in which a domestic police force which had almost no international links until the late 1980s now has liaison officers in embassies all over Europe and beyond. It has very excellent links with police in the Caribbean and elsewhere, and it has learnt not only to value language proficiency among our police forces but also how these informal and formal links now move together. The transformation of the European context of British policing and of sharing intelligence has been remarkable, although the Government have done their best not to tell us anything about it.
	The flexibility of the Foreign Office and our Diplomatic Service in providing open intelligence has also been very valuable. If I were to mark something that concerns me greatly, it is that the next comprehensive spending round will cut back on overseas posts to the point where information about which countries have failing Governments and which countries therefore provide bases for potential radical criminal movements will not be provided, because there will no longer be British posts in those countries. We always have to remember that open intelligence—the sort of things that the Diplomatic Service proper does—is always absolutely invaluable. I recall sitting in on an American discussion about intelligence services in which one of the Americans present said, "Part of our problem is that we have undervalued open sources. Because we thought that the secret sources were so much more interesting, we did not look at what was in front of our faces". British prisons as a source of recruitment are part of what we need to pull in, as are schools, which raises the question of education programmes at a local level.
	What concerns me in part is that I am not sure that the Government have a very clear sense of direction on this. I note in the annual report of the Intelligence and Security Committee for 2004–05 in paragraph 14 the comment that the Cabinet committee on the intelligence services has not met since December 2003, when it met for the first time in over seven years. The report says:
	"This is a disappointment to us because our view is that it should meet regularly to enable collective discussion by Ministers of intelligence priorities and developments. At present, Ministers discuss intelligence only in the context of crisis or single-issue meetings".
	That is a damning comment from the Intelligence and Security Committee, and it is the sort of thing that the Government should be taking much more clearly into account.
	The last point that I want to make is about how the Government should be carrying the public, the opposition parties and, if possible, even the media with them. The Government response to the ISC report on the 7 July bombings says:
	"The Government agrees that greater transparency about the threat level and alert state system itself, and a managed process for communicating it to the public, will enhance its effectiveness and increase public confidence and vigilance".
	I strongly agree with that. The Government do not provide very much of the information that would help to build a degree of consensus. We all understand that this is an immensely delicate subject area. However, as someone who has worked professionally in international relations, I am struck when I look back by the fact that I have spent a great deal more time talking with people from the National Intelligence Council in the United States, which put in a number of people from other countries to argue with it about the changing nature of the threat, and with analysts from the German intelligence services than I—or people like me—have spent with the British intelligence services. There need to be analysts thinking about the longer-term threat. The current approach seems to be a mistake. It does not create a constituency that is sympathetic to the Government. It leaves the opposition parties—and, therefore, even more, the media—uninformed about what is happening.
	The ignorance of most members of the Conservative Party about the significance of European co-operation in justice and home affairs, and among police forces and intelligence agencies, is a prime example of what I am talking about. It is now vital to our national security that we have those links, yet our major opposition party is apparently almost unaware that they exist, let alone aware of their value. Therefore, we need greater flexibility in our response to all this—

Lord King of Bridgwater: My Lords, the noble Lord slipped into an appalling piece of party-political propaganda. My recollection is that Conservative Ministers were instrumental in the setting up of Trevi and the close co-operation of ministers of the interior and Home Secretaries of the time. Where does his extraordinary idea come from that Conservatives do not appreciate that?

Lord Wallace of Saltaire: My Lords, after giving evidence to the inquiries of the European Foundation, which was staffed with members of the Conservative Party and others, I entirely agree that the Conservative Party in government did a great deal. I much regret that the next generation down from the noble Lord is much less well informed of that constructive contribution to European co-operation than are those of his experience.
	Lastly, and most of all, I ask the Government for greater transparency in order to carry the public with them and to build confidence and greater support for the response that we all need to make.

Lord Astor of Hever: My Lords, I am grateful to my noble friend Lord Hamilton of Epsom for this valuable debate. I know that many people outside the House will scan with real interest what is said this evening. I resent what the noble Lord, Lord Wallace, implied about my party in Europe.
	My noble friend began by offering a trenchant critique of some of the more venerable features of our present arrangements and by suggesting substantial structural changes to two of the principal agencies to bring them into the 21st century. There is general support for his argument that, in today's world, the old hard-and-fast distinction between what is domestic and what is international is obsolete and counterproductive.
	There is also extensive support, certainly from this side of the House, if not yet from Her Majesty's Government, for a distinct line of ministerial accountability for the intelligence and security services and homeland defence. The basically inadequate arrangements that are presently in place are reflected in the fact that it is a Home Office Minister, rather than a Cabinet Office Minister, who will respond to the debate. I make that point without any personal disrespect to the noble Baroness, Lady Scotland, who is charged with giving the Government's response, which, I recognise, will be a collective one. It is not the person who is wrong, but the system.
	There is a senior official in overall control at that level, who, I am led to believe, is a person of the highest competence, but we have no Minister through whom the parliamentary accountability of that official can be expressed. That said, in support of my noble friend's case, I must tell him that, as far as issues of overall reform are concerned, I am inclined to the view that he focused on the externalities of structural change at the expense of the necessary work of improving internal quality.
	This has been a timely debate, not least because we must hope that it may have helped to stop the slippage off the agenda of the observations on this subject made by the committee of inquiry, chaired by the noble Lord, Lord Butler of Brockwell. When the Butler committee reported two years ago next month, it made a number of well founded recommendations for reform—some explicit, others by implication. There have been piecemeal reports that some things have been done to give effect to those recommendations, but there has been no account of action on others. We trust that in her response to this debate, the noble Baroness will provide the House with an account of what has been done so far in response to the Butler recommendations, together with an interim report on further work in progress. If by any chance she is unable to do so, I would ask the Minister to take back a firm request to her colleague for a Written Statement.
	In turning our minds to issues of possible reform of our intelligence and security services, we need to consider both what might be called the underlying primary agencies and the overarching organisation of committees and relationships, which serve to provide our intelligence community as a whole with the resources and characteristics of a network. We need to reflect too on how well suited to purpose are the procedures by which the material of intelligence is fed into the processes of policy-making and of executive action—what we may briefly describe as the tasking and assessment processes. Currently in the media are examples of some of these issues: specific intelligence, which prompted a substantial police action in east London—action which it would now appear found nothing.
	We usually think in terms of three primary agencies—the Security Service, the Secret Intelligence Service and GCHQ—funded through the single security budget, co-ordinated by the Cabinet Office and to some extent co-responsible to that office at the centre of Government. We ought also to note that until a very few years ago even the existence of these agencies was not officially admitted and it would thus have been impossible to hold this debate tonight. That we are able to do so is largely to the credit of my noble friend Lord Hurd of Westwell and, of course, John Major as Prime Minister. We should not omit from our consideration of the primary agencies the contributions and role of the Defence Intelligence Staff. The Butler report drew attention to the importance of ensuring that the resources and informed reach of the DIS can be put to good use reinforcing those of the other elements in our intelligence community.
	In the overarching network of committees and relationships, undoubtedly the most important building block is the Joint Intelligence Committee. Adding the chairmanship of the JIC to the Security and Intelligence Co-ordinator, as has been done, may well work. It may not. I am not certain that this is what the Butler committee had in mind in the fairly precise recommendation that it made about the post, to which it rightly attached such importance. The result of this superficially logical combination may well be that neither of these demanding jobs is as well done as our national security requires that they should be. They may require only being done together by a superhuman person.
	A second important building block in our overall structure is the parliamentary Intelligence and Security Committee. It would be wrong for this subject to be debated in Parliament without paying tribute to the contributions that Members of both Houses have made to the success of this particular constitutional innovation. I would particularly like to mention my noble friend Lord King of Bridgwater, the distinguished founding chairman of that committee.
	Undoubtedly one area in which considerable and continuing improvement should be sought is in the relationships between our primary agencies and those which are—formally or informally—our liaison agencies, those of other nationalities. To say that there is scope for improvement and change is not to underestimate the practical difficulties pointed out by my noble friend Lord King.
	The constraints of time are such that I cannot give the detailed consideration to the processes by which collected intelligence is fed into the policy-making machinery and into decisions on executive action that the intrinsic importance of these dimensions would merit. I must, however, mention the benefit that the noble and learned Lord, Lord Lloyd of Berwick, and others believe would follow if communication intercepts could be adduced in evidence by amendment of the Regulation of Investigatory Powers Act 2000. There are, of course, other views on this, all for further debate another day. Similarly, with regard to the tasking and assessment processes, I can do no more than regret that there were not opportunities in the course of the debate to consider them properly, particularly in relation to the important and cost-effective role of the BBC Monitoring Service.
	My noble friend Lord Hamilton has made a strong case for the general concept that the work of our intelligence community can continue to be improved and should be improved. It may be that such continuing improvement will justify, to some extent, the label of "reform", but the pace of that reform should be progressive and well considered and not wholesale and revolutionary.
	I, for one, do not believe that we should feel dissatisfied with the way in which our intelligence and security community works at the moment; nor do I believe that we should allow them, or ourselves, to take false comfort in expressions of satisfaction. The rapidly changing dangers which that community has to anticipate and counter on our behalf are too serious and too threatening for that.

Baroness Scotland of Asthal: My Lords, I join others in thanking the noble Lord, Lord Hamilton, for giving us this opportunity to debate the issue of the Security Service, and I thank him for the courtesy that he has shown us all in sharing with us in advance an outline of his concerns.
	I respectfully and gently suggest to the noble Lord that the balance of the debate tends to indicate that his concern about the structure or framework in which the Security Service operates is not as flawed as he would have us believe. There was much power in what was said by the noble Lords, Lord King and Lord Wallace, about the way in which things have mutated and developed. It is absolutely right that a number of noble Lords—not least, the noble Viscount, Lord Brookeborough—should have said that we are living in a complex and changing environment. The noble Lord, Lord Hamilton, himself acknowledged that this is a very different framework from the one that we faced previously. The threat has changed; the speed has changed; the complexity is deeper than it has ever been; and therefore the challenge is the greater. Thus, there is great force in the comment of the noble Lord, Lord King, that this is not the time to undertake dramatic change in the way that the service is structured. The noble Lord was right when he said, "If it's not bust, don't fix it".
	I also take issue with the noble Lord for suggesting that the Security Service of the past has been a dismal failure—I think that that was how he described it. That is not our experience. It would not be fair to say and I cannot accept the central assertion that our intelligence agencies performed poorly in the circumstances that he described. We have much to be grateful for. They have undertaken essential work against a range of threats to the United Kingdom and to the UK interest, and the contribution to our nation's security cannot be overestimated. Perhaps I may touch on some of the historical issues that the noble Lord may have forgotten.
	It is not possible to assess the SIS record on the Soviet threat as a poor performance, once the early damage caused by fellow travellers recruited before World War II had been remedied, even if one talks only about the cases that have become public knowledge—for example, the vital contribution of Penkovsky in the Cuban missile crisis or Gordievsky in the Reagan era. Both SIS agents have been publicly acknowledged.
	The question of possible intelligence failures in the lead-up to the Falklands conflict was dealt with fully in the Franks report, which I am sure that the noble Lord, Lord King, will remember. Lord Franks pointed out that the decision to invade the Falklands was taken by the junta at a very late stage and that the intelligence agencies could not have been expected to provide earlier warning of the invasion. With regard to the Gulf War, no western intelligence agency predicted the invasion of Kuwait in sufficient time to prevent it, while the lessons learnt about the validation and use of intelligence arising from efforts to gather and assess intelligence on Iraq's weapons of mass destruction programme have been identified by the noble Lord, Lord Butler, and implemented by SIS across Whitehall.
	It is perhaps worth noting that both the failures to which the noble Lord, Lord Hamilton, refers relate to efforts to collect intelligence on the intentions of a state run by a ruthless dictator. History has shown that such regimes are difficult intelligence targets, requiring years of dedicated work to penetrate their secrets. Therefore, I do not take issue with the noble Lord, Lord King, when he says that you cannot develop intelligence sources overnight. They take time, skill, energy and patience.
	Our intelligence service, which I know that the noble Lord, Lord Hamilton, is familiar with, has to be seen against that background. We have changed. We have learnt in the way that we respond, co-operate and participate with one another. Northern Ireland was a cruel but effective learning exercise. That is why we have evolved as we have, why we have the skills that we have and why so many other services envy our acuity, because it has been hard won. I agree with the noble Lord, Lord Astor, that there is no room for complacency. No matter how well we have performed, we must do better.
	The noble Lord, Lord Hamilton, said, I think, that no one had anticipated the attack on London. I remind him how wrong that was. I remember—I still feel the scars on my back—being challenged month after month when I asserted from this Dispatch Box that the threat was real and that the contingency planning that we were urgently undertaking was necessary because it was a question not of "if", but "when".
	The noble Viscount, Lord Brookeborough, is right. The number of things that have been defeated because of the intelligence service's work has been considerable. For the first time, we have said that, after 7/7, we were able to deal with and avoid a number of threats. That is a little new. Coming to openness, there is an understanding that we must share information in a creative but safe way, so that people understand what we are about.
	There is real evidence to demonstrate how we have worked with the services. It is right to remind ourselves that there are three: the SIS, the Security Service and, as a number of noble Lords have mentioned, GCHQ. So there is change and safety—

Lord Wallace of Saltaire: My Lords, will the Minister accept that there are really five? There are also the Special Branch and the Defence Intelligence Staff. We must think of all five—perhaps six, including the Diplomatic Service.

Baroness Scotland of Asthal: My Lords, you could say there are five. We could go much wider, a point that I think noble Lords would make. But the three classic services we are talking about are SIS, SS and GCHQ.
	Each of those services has a different emphasis. GCHQ's foreign intelligence business revolves around the business management and exploitation of large-scale signal intelligence facilities. SIS specialises in human intelligence-gathering overseas. The Security Service operates primarily domestically to counter a range of national security threats, co-operating closely with law enforcement to deliver various forms of action, not just intelligence, as its principal output. Each has their own specialisation, and each adds something to the other.
	The need to collaborate, co-ordinate and work in unison is clear. We have made significant improvements in our ability to do this. Merging these intelligence agencies would not give us the same level of acuity that we now have with a well co-ordinated service.
	We have made changes to improve that position. I am sure that noble Lords will be familiar with the work of the Joint Terrorism Analysis Centre. Its work has been complimented by many people. It was established in 2003 and brings together cross-community expertise in the agencies, defence intelligence, the police and other organisations to provide timely analysis and operational intelligence assessment of the threat from international terrorism. The Intelligence and Security Committee said in its 2003–04 annual report—and I am sure the noble Lord will remember this comment:
	"The introduction of JTAC has been a success".
	That is a sentiment shared by others. In 2005, JTAC received more than 150 senior foreign visitors, including government Ministers, senior officials and royalty from Norway and Saudi Arabia. Those visits were in order to look at the model. The JTAC model has been emulated in the formation of similar centres in the United States, Australia, Canada, New Zealand and Spain. Other countries within Europe have had close contact with JTAC in developing their counter-terrorism structures—for example, Germany, the Netherlands and Sweden. The noble Lord, Lord Wallace of Saltaire, is right to say that that work is something to be celebrated and talked about. I know the sensitivity on the Benches opposite, and there seems to be a little dissonance—not in this House, but in the other place—about how Europe should be looked at. Another illustration of why this work is so important and the way in which we deal with it is CONTEST, which is an example of working together across organisational boundaries. The Government's CONTEST international counter-terrorism strategy spans all relevant government departments. That co-ordination has real value.
	On the subject of a single Minister for intelligence agencies, noble Lords are right. The noble Lords, Lord Astor, Lord King and Lord Hamilton, all asked about a new Minister and whether that is not an idea whose time has ripened. We think that the current situation enables us to have the direction that all noble Lords have spoken about. Currently, GCHQ and SIS fall under the authority of the Foreign Secretary and the Security Service falls under that of the Home Secretary. The rationale is that GCHQ and SIS activities are primarily in support of foreign and defence objectives. Their objectives are mainly foreign, and any difficulties arising from their activities are most likely to involve foreign states. Security Service targets are primarily in the United Kingdom and any difficulties arising from its activities are mostly likely to occur in the United Kingdom.
	If there were to be a Minister for intelligence in practice—I remind the noble Lord, Lord Hamilton, that, for the first time, we have a woman Foreign Secretary, so she is now responsible for that role—her power would be likely to be circumscribed by the continuing need to seek the concurrence of other Ministers before authorising operations abroad or at home. There could be conflict. An alternative would be to leave the agencies under the overall authority of the present Secretaries of State, but to appoint an intelligence Minister under them to exercise managerial, but not operational, supervision of all three. That is a complex arrangement, and we think that with the assistance of the Prime Minister the current arrangement works well.
	I know that I have run over time, but I say quickly to the noble Lord, Lord Astor, that the Government accepted the conclusions of the Butler review and have implemented its recommendations. We have put in a whole series of things. The noble Lord will know that another report is about to come out on a review to see whether that which we have put in place meets the needs and satisfies the Butler recommendations. When that report comes out, I am sure we will be able to share it with the noble Lord.
	I thank the noble Lord, Lord Hamilton, for giving me this opportunity to celebrate the way in which the security services have worked, while acknowledging that there is much more work for us to do in a much more complex and difficult environment than any of us have ever worked in before.

Electoral Administration Bill

The Bill was returned from the Commons with an amendment disagreed to, with a reason for such disagreement and with the remaining Lords amendments agreed to; the reason was ordered to be printed.
	House adjourned at half-past ten o'clock.

Wednesday, 14 June 2006.